The Tribunal had the power to dispose of the case on its merits even in the absence of a cross-objection on behalf of the State Government.

JUDGMENT

G. C. DAS, J. - This reference under sub-section (1) of section 24 of the Orissa Sales Tax Act, 1947, (Orissa Act No. XIV of 1947, hereinafter referred to as "the Act") raised the sole question :

"Whether in the facts and circumstances of the case the order of the Tribunal declining to interfere with the orders of the Assistant Collector of Sales Tax, Ganjam Range, on the point of application of the proviso to section 5(2)(a)(ii) of the Orissa Sales Tax Act, 1947, in respect of assessment for the quarters ending on 30th June, 1951, and 30th September, 1951, is proper."

2. The facts, giving rise to the proposed question, are these :-

The dealer-assessee (hereinafter referred to as "the assessee") is a registered dealer under the Act bearing No. G.A. I-146. He was assessed for the quarters ending on 30th June, 1951, to 30th June, 1952. The incontroverted facts are that the assessee purchased taxable commodities on the strength of his certificate of registration giving a declaration under sub-rule (2) of rule 27 of the Orissa Sales Tax Rules, 1947, to registered dealers in Orissa from whom he made the purchases. Instead of re-selling them in Orissa, he exported and sold them outside Orissa. Thus, while effecting such sales, he collected sales tax from the outside purchasers. The Sales Tax Officer applied the proviso to section 5(2)(a)(ii) of the Act to the above facts and held that the purchase-values are to be added back to the taxable turnover of the assessee. But instead of calculating the sales tax on such purchase-value and directing the assessee to pay such tax, he directed the payment of the total collection, by way of sales tax, made by the assessee from the outside purchasers. On appeal, the Assistant Collector of Sales Tax, following the principles as laid down in Khem Chand's case (Since reported in [1953] 4 S.T.C. 394) by the Board of Revenue, Orissa, held that such purchase-value cannot be added back to the taxable turnover of the assessee for the period prior to 27th November, 1951. The Assistant Collector, however, did not apply the distinction beyond 30th September, 1951, and held that such purchase-value cannot be added back to the taxable turnover for the quarters ending on 30th June, 1951, and 30th September, 1951. Thus, he treated as if such purchase-values were to be added for the period from 1st October, 1951. Eventually, he revised the assessment for the quarter ending 30th June, 1951, and confirmed them for the rest of the quarters. There was an appeal to the Tribunal. The Tribunal, following a decision of this Court, came to the conclusion that the appellate authority was wrong in not adding back to the taxable turnover of the assessee for the quarters ending on 30th June, 1951, and 30th September, 1951. Accordingly, he held the act of not adding back to be illegal. He, however, refused to give relief to the State on the ground that the State did not file any cross-objection as provided in clause (b) of sub-section (3) of section 23 of the Act. Thus the question, referred to this Court, arises out of this appellate order of the Tribunal.

3. The Tribunal, in his order under section 23(3), while dealing with this aspect of the case, observed :-

"Doubtless in the view I have already taken in respect of other quarters the direction given by the Assistant Collector of Sales Tax to exclude such amounts from the taxable turnover of the appellant must be held to be illegal. It is also true that the Tribunal has got power to correct any error or mistake while sitting in second appeal."

He, however, as I have stated earlier, took the view that when there is a provision for filing cross-objection on behalf of the State, the State not having filed any such cross-objection cannot now ask the Tribunal to give a relief which it could otherwise have asked for by way of cross-objection. Or else, section 23(3)(b) of the Act, in his view, would be nugatory. Accordingly, he came to the conclusion that such purchase-