9911796707
TMI Blog1984 (1) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and in the circumstances of the case the Tribunal has rightly acted in accordance with the proviso to sub-section (3)(a) of section 23 of the Orissa Sales Tax Act by condoning the delay in the matter of filing the second appeal? (4) Whether on the facts and in the circumstances of the case the Tribunal acted without considering the material on record in disallowing the claim of deduction claimed by the petitioner and in allowing the claim of the State for enhancement?" The facts giving rise to this case are as follows: The petitioner carries on business in automobiles and is a registered dealer having its place of business at Cuttack. It has also its head office at Jamshedpur. For the quarters ending 31st March, 1967, and 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner filed first appeal before the Assistant Commissioner of Sales Tax who by order dated 7th May, 1966, allowed further deductions on account of outside sales. The State Government being aggrieved by the orders of the Assistant Commissioner of Sales Tax filed second appeal before the Sales Tax Tribunal on 26th September, 1966, after a lapse of 76 days along with a petition for condonation of delay. The Tribunal condoned the delay, heard the appeal and by its order dated 25th May, 1973, not only confirmed the assessment order dated 27th February, 1965, but also enhanced the tax by disallowing the deductions allowed by the Sales Tax Officer. The petitioner thereafter filed an application under section 24(1) of the Act requiring the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the appeal, the Tribunal has arbitrarily and whimsically condoned the delay. He further submitted that while condoning the delay the Tribunal has observed that the respondent (petitioner in this case) has not filed any counter refuting the assertion made in the petition for condonation of delay filed by the appellant (opposite party in this case). This is an error of record. The objection regarding limitation taken by the petitioner has not been considered by the Tribunal. 4.. The learned counsel for the opposite party submitted that the jurisdiction of the High Court under section 24 of the Act is advisory and shall be confined to the question of law arising out of the order of the Tribunal and in this case no question of law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised before the Tribunal but the Tribunal fails to deal with it, it must be deemed to have been dealt with by it, and is therefore one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it, it will not be a question arising out of its order notwithstanding that it may arise on the findings given by it." In another decision of the Supreme Court reported in Commissioner of Income-tax, Bihar and Orissa v. S.P. Jain [1973] 87 ITR 370 (SC) their Lordships have held: "In our view, the High Court and this court have always the jurisdiction to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods were inside the State of Orissa at the time of contract of sale. It is no good assuming things contrary to law and to say that the vehicles might not have been produced before the registration authority at the time of their registration. It is obvious that the vehicles were inside the State when the contracts were made and hence there is no escapement from the conclusion that the sales had taken place in Orissa. The appellant in his returns claims that sales were outside the State. He should, have produced evidence that the contracts took place when the goods were outside the State and as the matter is within his special knowledge the presumption must be adverse to him." The observation of the Tribunal that the contracts were no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reported in Brajabandhu Nanda v. Commissioner of Income-tax, Bihar and Orissa [1962] 44 ITR 668 (FB), it has been held: "It is a matter of discretion for the Tribunal to condone delay on sufficient cause being shown as it may think fit in the facts and in the circumstances of the particular case. It is, thus, a question of fact in each case and no point of law is involved for reference to the High Court. " We are no doubt bound by the decision of the Full Bench of this Court. But in this case while considering the question of condonation of delay the Tribunal observed that the respondent (petitioner) has not filed any counter refuting the assertion made in the petition of the appellant (opposite party) praying for condonation of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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