Deductions under section 5(2)(a)(ii) of the Orissa Sales Tax Act are allowable when goods are sold by a registered seller to a registered buyer and are specified in the latter's certificate as being intended for resale by him in Orissa. A cross-objection filed by the State in an appeal before the Tribunal under section 23(3)(a)(b) of the Orissa Sales Tax Act is maintainable.

JUDGMENT

DAS, J. - These two references under sub-section (1) of section 24 of the Orissa Sales Tax Act (Orissa Act XIV of 1947) were made by the Member, Sales Tax Tribunal, Orissa, at the instance of a dealer, Messrs M. A. Tullock & Company. They were heard together and are governed by this common judgment.

2. The facts are : Messrs M. A. Tullock and Co., Ltd. (hereinafter referred to as "the assessee") is a registered dealer under the Orissa Sales Tax Act bearing registration certificate No. BA 1714. They had their place of business in Keonjhar within the State of Orissa. The assessee deals in mineral ores. The period of assessment relates to the second and third quarters of the year 1951, that is, quarters ending on 30th June, 1951, and 30th September, 1951. As required by the taxing authorities, the assessee submitted his returns on 25th July, 1951, and 15th November, 1951, for the aforesaid two quarters. In the return the assessee returned his gross turnover at Rs. 2,69,045-8-9 and Rs. 1,36,418-1-3. He, however, claimed deductions under section 5(2)(a)(ii) at Rs. 2,40,000 and Rs. 15,677-1-3 respectively on the ground that he sold the minerals to S. Lal and Company Ltd., another registered dealer in Orissa having registration certificate No. BA 1335. I may mention here that the assessee had also sold minerals to two other companies, namely, Hind Shippers Ltd., and Indian Trade Corporation during the period in question. These two companies are not registered dealers in Orissa and accordingly the tax has been paid in respect of the sales transacted with them. Thus, the assessee only claimed deduction in respect of the sales made to Messrs S. Lal and Company. The assessing officer allowed the claim of the assessee under section 5(2)(a)(ii) for both the quarters. On appeal, it was confirmed by the Assistant Collector of Sales Tax, but in second appeal the Tribunal held that the assessee is not entitled to the deductions under section 5(2)(a)(ii). At the time when the second appeal was pending before the Tribunal, a cross-objection was filed on behalf of the State represented by the Commissioner of Sales Tax, Orissa. The assessee questions the maintainability of this cross-objection which was negatived by the Tribunal. Accordingly the assessee filed an application under sub-section (1) of section 24 of the Orissa Sales Tax Act for a reference of a number of questions which arose out of the order passed by the Tribunal on 18th March, 1958, while disposing of the Appeals Nos. 144 and 145 of 1957. Eventually the Tribunal referred the following two questions for decision of this Court :

"(i) Whether the assessing officer was not wrong in allowing deductions of Rs. 2,40,000 for the quarter ending on 30th June, 1951, and Rs. 15,677-1-3 for the quarter ending on 30th September, 1951, from the respective gross turnovers of the applicant; and

(ii) Whether in the facts and circumstances of the case the Tribunal was right in entertaining the cross-objection and giving relief under it ?"

3. The account books showing the gross turnover as have been filed by the assessee, Messrs M. A. Tullock and Co. Ltd., were accepted by the Sales Tax Authorities. It is also admitted that (sic) Mr. Acharya, learned counsel on behalf of the petitioner contended that the first question referred to this Court in covered by an earlier decision of this Court. In fact, both the questions referred to this Court for decision are concluded by two Division Bench decisions of this Court. To both these decisions I was a party.

4. In the case of Member, Sales Tax Tribunal v. Messrs S. Lal and Company (Since reported at [1961] 12 S.T.C. 25), S.J.C. No. 4 of 1958 disposed of on 13th July, 1960, the very purchasing dealer in the present case was the opposite party in the case. The question that was referred to in that case was : "Whether on the facts and circumstances of this case the proviso to section 5(2)(a)(ii) of the Orissa Sales Tax Act will not operate unless the p