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TMI Blog2009 (10) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has no dealing on pure silk sarees merely because such pure silk sarees costs Rs. 250 per piece during that period and thereby annulling the assessment made for the year 1986-87 under section 12(8) of the Orissa Sales Tax Act, 1947 which is contrary to the facts admitted by the assessee? In view of the amendment of the Orissa Sales Tax Act, 1947 (hereinafter referred to as, the Act ), the reference numbered earlier as SJC No. 131 of 1995 has been registered as revision and renumbered as TREV No. 120 of 2001. It is submitted at the Bar that irrespective of the nomenclature, an order of the Tribunal can be impugned before the High Court under section 24 of the Act only on the ground that the Tribunal has either failed to decide or decided erroneously any question of law. Such being the admitted position, the question of law raised in the reference as quoted supra is reiterated before us by Mr. R.P. Kar, learned counsel for the Revenue in course of hearing of this revision. The facts relevant to the question referred to supra may be stated in short. On the basis of new case report No. 42 dated September 22, 1986 submitted by the Inspector of Sales Tax, Vigilance Win ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessing officer in first appeal before the learned Assistant Commissioner, Commercial Taxes who confirmed the order appealed so far as the assessment year 1986-87 is concerned. The opposite-party then preferred a second appeal before the Sales Tax Tribunal. The Tribunal on consideration of the materials on record held thus: . . . As regards the assessment for the year 1986-87 is concerned the assessment depends on the fact of detection of 39 numbers of saree found in the stock of the dealer. On examination of the saree I feel that the same are not of pure silk made. Besides this an enquiry was caused to ascertain the lowest price of pure silk saree during the year 1986-87 and it was ascertained that during the year 1986-87 pure silk sarees were not available in the market at a cost of Rs. 250 per piece. In view of this I feel that merely because the words 'pure silk' were printed on the body of the sarees, the nature of sarees cannot be changed from the artificial silk saree to pure silk saree particularly when the price was Rs. 250 only. Law envisages that tax be imposed on pure silk saree but not on artificial silk saree. In view of this there is no materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended by Mr. Kar that in reaching his conclusion the Tribunal has erred in taking into consideration the make and texture of sarees produced by the opposite-party before him in course of hearing of the second appeal after eight and half years of the detection by the Inspector of Sales Tax (Vigilance). Mr. M. Agrawal, learned counsel for the opposite-party oppugns such contentions on the ground that the alleged admission of the opposite-party before the inspecting officer is not sacrosanct inasmuch as from the very beginning the opposite-party has been consistent in his assertion that he is not dealing in pure silk sarees. He further submits that the sarees detected by the inspecting officer from the business premises of the opposite-party cannot be made exigible to tax as pure silk saree, without further materials to prove that those sarees are actually pure silk sarees but, however, there is no material worth the credence to conclude that the sarees kept for sale by the opposite-party on the relevant date of inspection are pure silk sarees. He further submits that the Tribunal being the final forum of facts, has got every authority and jurisdiction to satisfy itself about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lings in pure silk sarees learned assessing officer has relied on the material fact as quoted in paragraph 5 supra. So far as detection of 39 pieces of pure silk sarees by the inspecting officer on physical verification of stock-in-trade in the business premises of the opposite-party on the relevant date is concerned, there is admittedly no material to sustain the conclusion that those are pure silk sarees except the admission by the opposite-party before the inspecting officer on August 7, 1986. The assessing officer has relied on some sale memos produced by the opposite-party before him showing sale prices of sarees sold by him that vary between Rs. 235 to Rs. 860. There is, however, nothing on record to show or suggest that the opposite-party has sold any saree like the bulk detected with the label of pure silk saree at a price more than Rs. 250 per piece. The finding of the assessing officer on this aspect regarding variance of sale price of sarees between Rs. 235 to Rs. 860 is too far-fetched inasmuch as there is nothing to connect the sale memos with a higher price tag with the sale of sarees like the bulk detected with the label of pure silk . In view of such position, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uced by the learned counsel for the opposite-party before the Tribunal is also too far-fetched inasmuch as such a course has been adopted by the Tribunal to reach a just decision about the legality of the assessment order and such fact has been collected and verified in presence of the representative of the Revenue in course of hearing admittedly, without any objection by the State Representative present at the time of hearing of the second appeal. In view of such fact it cannot also be said that the Tribunal has stepped out of its jurisdiction in the matter. Another peculiar feature which rather reinforces our view is the statement of the reference by the learned Tribunal which is entirely based on facts only and the question that is raised in the reference is nothing but inference of facts from facts as suggested by the question of reference formulated by the Tribunal. Further learned Tribunal in formulating the question for reference has acted as if it has sat to review the earlier order, forgetting to find out as to whether any question of law actually arises out of the order impugned. In view of our discussion supra we are of the view that the reference made by the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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