TMI Blog2003 (8) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... se to this case are that the petitioner-firm was assessed by the Sales Tax Officer and the tax was imposed. Being aggrieved, the petitioner-assessee filed Appeal Nos. 1142 of 1980 for the year 1975-76; 520 of 1981 for the year 1977-78 and 906 of 1981 for the year 1978-79 vide order dated May 25, 1982, all the appeals were allowed. Appeal No. 1142 of 1980 was allowed in toto while Appeal No. 520 of 1981 was partly allowed reducing the amount of tax. Appeal No. 906 of 1981 was also partly allowed reducing the amount of tax. Thus, an amount of Rs. 1,39,478.78 had to be refunded in view of the orders of the appellate authority. The petitioner adjusted the said amount towards the sales tax from April to July, 1982 and January, 1983. A notice dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the counsel for the petitioner and representative of the department. Certified copy of the said order was dispatched by the department to the petitioner-assessee on May 29, 1982, therefore, it cannot be said by the respondents that the order purported to be passed by the appellate authority is forged and fabricated document. It has further been submitted that in view of the judgment of this Court in Sales Tax Revision No. 149 of 1991 in Hind Lamps Ltd. v. Commissioner of Sales Tax, U.P., Lucknow dated July 24, 2003, [2004] 136 STC 483 supra it is permissible for the assessee to adjust the said amount which could have been refunded to the assessee. 4.. On the contrary, it has been submitted by Shri S.P. Kesarwani, learned Standing Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing appropriate evidence. However, the party, which makes an allegation that the act has not regularly been performed, the onus to prove lies upon him that the proper procedure has not been followed or the act has not been performed as was required under the law. 8.. In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey AIR 1966 SC 1931, the honourable Supreme Court considered the scope of illustration (e) of section 114 of the Evidence Act and the question was: whether the Deputy Commissioner, who performed the particular function, had even been authorised to act. The court held that if an official act is proved to have been done, it will be presumed to have been regularly done and in such an eventuality and circumstances, the court ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact. It is an optional presumption can be displaced by the circumstances indicating that the power lodged in an authority or official has not been exercised in accordance with law. 12.. Similar view has been reiterated in Jhaman Lal v. State of Rajasthan AIR 1965 Raj 86, Ganga Ram v. Smt. Phulwati AIR 1970 All. 446, Saeed Ahmed v. Syed Qumar Ali AIR 1973 All. 24, Somasudarshan Goud v. District Collector, Hyderabad AIR 1978 AP 420, Sone Lal v. State of U.P. AIR 1978 SC 1142, Municipal Board, Saharanpur v. Imperial Tobacco of India Ltd. AIR 1999 SC 264, K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510, State Government of NCT Delhi v. Sunil (2000) 1 SCC 652 (sic), Kiran Gupta v. State of U.P. (2000) 7 SCC 719 and Superintendent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be proved by a certified copy. 17.. The document being a certified copy of a public document need not proved by calling a witness (vide Madamanchi Ramappa v. Muthaluru Bojjappa AIR 1963 SC 1633). 18.. Any tax assessment order is a public document and admissible under sections 76 and 77 of the Evidence Act [vide Rama Rao v. Chitluri Venkataramavyya [1940] 8 ITR 450 (Mad.) [FB]; AIR 1940 Mad. 768 (FB) and Suraj Narain v. Seth Jhabhu Lal [1945] 13 ITR 13 (All.); AIR 1944 All. 114]. 19.. In Allah Bux v. Ratan Lal Jain [1958] 9 STC 699 (All.); AIR 1958 All. 829 the court held that assessment order passed by Sales Tax Officer is a public document and the sales tax return filed by the assessee is also a public document. 20.. Thus, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities and it has been supported by the appellate authority himself, who has submitted that he had decided the appeals after giving full opportunity of arguments and hearing the departmental representative, Shri Mohd. Zafar. Allegations made by the department were not correct and the appeals were decided after the documents had been verified by the departmental representative as required under rule 68(a) of the U.P. Sales Tax Rules, 1948. 23.. For the reasons best known to the department, said Shri Mohd. Jafar has not been asked to file affidavit by the department and no explanation has been furnished as under what circumstances he has not been examined. 24.. Thus, in view of illustration (g) of section 114 of the Evidence Act, the Lab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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