9911796707
TMI Blog2009 (3) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... tage. Admittedly the CTO/RJ charge under ex parte order dated June 11, 2007 assessed tax under section 45(1) of the WBST Act, 1994 of the petitioner being a registered dealer ex parte to the best of his judgment for nonappearance of the petitioner on June 8, 2007 which was the seventh adjourned date of hearing. In this order he determined the GT of sales at Rs. 9,00,00,000 and TSPP Rs. 1,50,000 to the best of his judgment. From this order the petitioner preferred appeal which was registered as A/BB/RJ 25/07-08 on the grounds, viz. (i) no reasonable opportunity was allowed to produce books of accounts, and (ii) estimation GT and TSPP was bad in law. The appellate authority Sri P. Haldar, Assistant Commissioner, Borobazar circle, by his order dated January 28, 2008 confirmed the aforesaid assessment order with observation, "considered all the grounds of appeal and checked the records. On scrutiny of records it transpires that the dealer was given as many as 6 (six) adjournments to produce books of account in the appellate stage, but the dealer did not turn up. It seems that the dealer was given a reasonable opportunity of being heard, though he failed to avail of the opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such the appellate order suffers from infirmities. For disposal of the revisional application under section 81 the procedure is prescribed in rule 247 of the WBST Rules, 1995. Sub-rule (1) of this rule provides, "where it appears to the revisional authority that an application made under rule 246 is in order, he shall serve upon the applicant a notice in form 54 directing him to appear and produce before him such accounts, documents or evidence as he wishes to rely on in support of the grounds taken in such application on the date and at the time and place specified in such notice". Sub-rule (2) provides, "the revisional authority shall fix a date for hearing of the application for revision ordinarily not before thirty days from the date of issue of the notice referred to in sub-rule (1)". Sub-rule (2C), "where the application for revision relates to revision of an order of appeal arising out of any assessment, the revisional authority, may at the time of hearing, hear the concerned assessing authority or in his absence such other authority as directed by the appropriate Deputy Commissioner or Additional Commissioner". Sub-rule (3) provides, "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n revisional proceeding. In fact, such distinction is not necessary. So, this observation of Mr. Mondol is misconceived. Could the revisional authority under section 81 admit evidence? The provisions of the subrules (1), (2), (2C), (3) of rule 247 and proviso thereto answer this question in the affirmative. It is correct that the manner of taking evidence is not provided in the rules. So, the rules of principle of natural justice would be applied and in doing this the simple rules of the CPC or other procedure or other procedure convenient to both the sides can be adopted. In the present case the revisional authority had no occasion to take evidence because he refused to admit the same. Mr. Mondol cited the decisions of the honourable Supreme Court reported in Shiv Chander Kapoor v. Amar Bose AIR 1990 SC 325, Jaipur Development Authority v. Smt. Kailashwati Devi AIR 1997 SC 3243 and Vijaykumar Durgaprasad Gajbi v. Kamlabi [1995] 6 SCC 148, and in support of his refusal to admit evidence. In the first two cases the judg ments were on the O., 41, r. 47, CPC in the third one the honourable Supreme Court refused to interfere with the rejection of the application under section 115, CP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no rules similar to the above rule 29 in the WBST Act or Rules. So, the application of this decision by Mr. Mondol is erroneous. The decision of the honourable Kerala High Court in Mookken Devasy Ouseph and Sons v. State of Kerala reported in [1960] 11 STC 323 as relied on by Mr. Mondol is on rule 48 framed under the provisions of the Travancore-Cochin General Sales Tax Act, 1925 which are as follows (at page 326 of 11 STC): "(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Tribunal. But if,-- (a) the authority, from whose order the appeal is preferred, has refused to admit evidence which ought to have been admitted, or (b) the party seeking to adduce additional evidence, satisfies the Tribunal that such evidence, notwithstanding the exercise of the diligence, was not within his knowledge, or could not be produced by him at or before the time the order under appeal was passed, or (c) the Tribunal requires any document to be produced or any witness to be examined to enable it to decide the case or for any other substantial cause the Tribunal may allow such evidence or document to be produced, or witness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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