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TMI Blog2015 (12) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to the petitioner by the first appellate authority by restoring the assessment order when the Revenue has no grievance against grant of such relief to the petitioner by the first appellate authority. - Impugned order is unsustainable - Decided in favour of assessee. - W. P. (C) No. 11723 of 2011 - - - Dated:- 26-11-2014 - MAHANTY I. AND MAHAPATRA B. N. JJ. M/s. Damodar Pati, S. K. Mishra and R. S. Das for the petitioner. R. P. Kar, Standing Counsel, for the respondents. JUDGMENT This writ petition has been filed with a prayer to quash the order dated August 11, 2010 (annexure 1) passed by opposite party No. 2-Orissa Sales Tax Tribunal, Cuttack (for short, the Tribunal ) in S. A. No. 1539/2004-05 pertaining to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment by making addition of ₹ 6,34,889.61 on account of sale of waste paper (scrap material) and making further addition on account of turnover of additional place of business. Accordingly, opposite party No. 3 determined the gross turnover and taxable turnover. Opposite party No. 4, the first appellate authority taking into consideration various material facts and evidence available on record held that the same turnover cannot be taxed twice and accordingly allowed adjustment of tax amounting to ₹ 1,04,733 deposited by the petitioner at Rayagada and waived the levy of interest of ₹ 153 made under section 12(4a) of the Orissa Sales Tax Act (for short, the OST Act ). Opposite party No. 4 also restricted the addition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon it passed the impugned order dated August 11, 2010 holding that two points arising out of assessment have not been dealt with properly by opposite party No. 4 and passed the order ignoring the principles of natural justice. Such action of opposite party No. 2 is illegal and arbitrary. Mr. Pati further submitted that though the appeal was heard on August 4, 2009 by opposite party No. 2, the impugned order was passed on August 11, 2010, i.e., after lapse of one year and two months. Concluding his argument, Mr. Pati submitted that the impugned order passed by the learned Tribunal may be set aside. 4. Mr. R. P. Kar, learned standing counsel for opposite parties, supported the impugned order of the Tribunal passed under annexure 1. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shed product towards sale of scrap paper and determination of price thereof is not correct. It is also pertinent to mention here that the Revenue after receipt of the appeal memo filed by the petitioner has not filed any cross-objection. Therefore, the only issue that was left for adjudication by opposite party No. 2-Tribunal is whether opposite-party No. 4 has rightly determined two per cent. of the sale value of the finished product as sale value of scrap paper. 7. At this juncture, it would be profitable to refer to the decisions of the honourable Supreme Court and this court. 8. The honourable Supreme Court in the case of State of Kerala v. Vijaya Stores [1978] 42 STC 418 (SC) , held as under (page 422 in 42 STC): . . . The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. The normal rule that a party not appealing from a decision must be deemed to be satisfied with the decision, has to be taken to have acquiesced therein and must be bound by it, and, therefore, cannot seek relief against a rival party in an appeal preferred by the latter, has not been deviated from in section 23(3)(c). The Tribunal has no jurisdiction or power to enhance the assessment in the absence of an appeal or cross-objection by the Revenue. . . 12. In Shiv Prasad Sahu v. State of Orissa [2009] 19 VST 417 (Orissa), this court has held as under (page 426 in 19 VST): . . . Needless to say that the Tribunal is under a duty to decide all the questions of facts and law raised in the appeal before it. However, Tribunal on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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