M/S. STEEL AUTHORITY OF INDIA LTD. versus SALES TAX OFFICER, ROURKELA-1 CIRCLE AND ORS.

[2008] 10 S.C.R. 655

MIS. STEEL AUTHORITY OF INDIA LTD. v.

SALES TAX OFFICER, ROURKELA-1 CIRCLE AND ORS. (Civil Appeal No. 4290 of 2008)

JULY 10, 2008

[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

Appeal: Statutory appeal - Disposal of, in casual man-ner - Held: Various important questions of law raised not dealt with by first appellate authority - Reading of the order shows . complete non-application of mind - Matter remitted to first ap-pellate authority for fresh consideration - Central Sales Tax Act, 1956.

Judgment/Order: Reasoned order - Right to - Held: Spelling out reasons for the order made is one of the salutary requirement of natural justice - Right to reason is an indis-pensable part of sound judicial system.

Appellant-assessee was engaged in carrying on

manufacture and sale of various products. Apart from that, the appellant-Company effected transfer of stock of goods to its branches located at various places of the country. For the assessment year 2001-02, notice was issued for assessment under Central Sales Tax Act, 1956 and de-mand of Rs.19.25 crores was raised. The appellant filed appeal challenging the assessment order. During the pendency of the appeal, an application for stay was filed. The Assistant commissioner (first appellate authority) di-rected payment of part of the amount. On revision, Com-missioner directed payment of Rs.10 crores. High Court directed deposit of Rs.2 crores. The said order was ques-G tioned in SLP No.5314 of 2006. This Court on 31.3.2006, passed interim order of stay.

On 19.4.2006, the First appellate authority dismissed

the appeal and confirmed the order of assessment. On

appeal and stay applicati.on, order of deposit of Rs.15 crores was passed. The said order was challenged be-fore the High Court and by the impugned order, the High Court disposed of the said petition without expressing any opinion on merits but observing that the matter was under examination by this Court. Hence the present ap-peal.

Partly allowing the appeal and remitting the matter to Assistant Commissioner, the Court

HELD: 1.1. In normal course, the plea relating to the

merits of the assessment, when statutory remedy has been availed, is not entertainable. But the casual manner in which the first appellate authority has disposed of the 0 [.appeal ][is ][shocking. ][A ][bare reading ][of ][the ][order ][shows ]complete non-application of !llind. This is not the way statutory appeal is to be dis·posed of. Various important questions of law were raised. Unfortunately, even they were not dealt with by the first appellate authority. [Paras 8, 9] (661-F, 662-F]

Ashok Leyland Ltd. v. State of Tamil Nadu & Anr. (2004)

3 sec 1; Ashok Leyland Limited v. Union of India & Ors. (1997) 9 sec 10 -referred to.

1.2. Reason is the heartbeat of every conclusion. It

introduces clarity in an order and without the sarne it be-comes lifeless. [Para 1 O] [662-G]

Raj Kishore Jha v. State. of Bihar (2003) 11 SCC 519 -

relied on.

MR. in Breen v. Amalgamated Engg. Union (1971) 1 All

ER 1148; Alexander Machinery (Dudley) Ltd. v. Crabtree (1974) ICR 120 (NIRC) - referred to.

1 :3~ Right to reason is an indispensable part of sound judicial system; reasons at least sufficient to indi-

MIS. STEEL AUTHORITY OF INDIA LTD. v. SALES

TAX OFFICER, ROURKELA-1 CIRCLE [DR ARIJIT PASAYAT, J.]

cate an application of mind to the matter before court. An-

other rationale is that the affected party can know why the decision has gone against him. One of the salutary require-ments of natural justice is spelling out reasons for the or-der made; in other words, speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with judi-cial or quasi-judi~ial performance. [Para 11) [663-C,D]

CIVILAPPELLATE JURISDICTION: Civil Appeal No. 4290

of 2008

From the final Order dated 7.9.2006 of the High Court of

Orissa at Cuttack in W.P. (C) No. 11192 of 2006

G.E. Vahanvati, S.G., Parag P. Tripathi, A.S.G. Altaf II.

Naiyak, A.G., Shail Kumar Dwivedi, A.AG., Ranjit Kumar, Rakesh Dwivedi, S. Borthakur, Sunil Kumar Jain, K1rti Renu Mishra, Gopal Singh, Anukul Raj, Sweta Singh, ,Hemantika Wahi, Pinky, Jesal, R. Sathish, Bharat Swaroop Sharma, Vijay Kumar Pandita, Dayan Krishnan, Neelam Sharma, T.C. Sharma, Neera Gupta, Asha G. Nair, Vismai Rao, D.S. Mahra, V.G. Pragasam, S.J. Aristotle, Prabu Ramasubramaniam, Vikrant Singh Sais, B.S. Banthia, Khwairakpam Nobin Singh, David Rao, Tarun Jamwal, S. Biswajit Meitei, Vijay Prakash, Sanjay R. Hegde, Amit Kr. Chawla, Arun Varma, Vikrant Yadav, Jatinder Kumar Bhatia, Manjit Singh, Harikesh Singh, T.V. George, Ajay Pal, Avijit Roy, Ranjan Mazumdar (for Mis. Corporate Law Group), Vandana Mishra, Sahdev Singh, Vibha Dwivedi, G.V. Rao, A. Subhashini, Tabraj, Ashwani Garg, Anis Suhrawardy and R. Nedumaran for the appearing parties.

The Judgment of the Court was delivered by

Dr. ARIJIT PASAYAT, J. 1. Leave granted.

2. Challenge in this appeal is to the order passed by Division Bench of the.Orissa High Court disposing of the writ petition without any decision on merits because in respect of the assessment year in question, i.e. 2001-02, an order was earlier passed by thts Court on 31.03.2006.

3. brief reference to the factual aspects will be neces-.

sary.

The appellant, Public Sector Undertaking carries on busi-ness in manufacture and sale of Iron & Steel and Chemical Fertiliser as its finished product and bi-product, surplus and re-B jected articles, in course of inter-state trade and commerce and export. Apart from that, the appellant-Company effects transfer of stock of goods to its branches located at various places of the country. For the assessment year 2001-02, notice was is-sued under Rule 12(5) of the Central Sales Tax (Orissa), Rules, 1957 (in short 'Central Rules') for the purpose of assessment under Central Sales Tax Act, 1956 (in short the 'Act'). After ex-amination of the books of accounts produced, an extra demand of Rs.19,25,41, 763.00 was raised. The appellant-Company had disclosed net sale and transfer of goods during the year under

assessment in question as follows:

1. Sales U/s 8(1)(a)(b) Rs. 714, 18,82,639.06

2. Sales U/s 8(2)(b)

Rs. 10,37,23,857.45

3. Export Sales Rs. 10,95,977.00

4. Branch/Stock transfer Rs.1130,24,48,338.61

Rs.1854,91 ,50,812.12

Total

The Assessing Officer found that certain declaration forms in Form 'C' were not produced and, therefore, the differential tax was to be levied. With reference to Clause (a) of Section 3, it was held that the sales made under the Annual Memorandum of Understanding (MOU), which were treated as Bank transfers · are in fact, sales made in course of inter-state trade and com-G merce and, therefore, are subject to tax. Accordingly tax was levied.

Questioning correctness of the assessment made, an appeal. was preferred before the Assistant Commissioner of Sales Tax, Sundergarh Range, Rourkela. During the pendency of the appeal, an application for stay was filed. The Assistant

Commissioner directed payment of part of the demand. Ari application for revision was filed before the Commissioner, who, by order dated 28.12.2005 in Revision Case No. SU-87/05-06 directed payment of Rs.10.00 Crores. Writ Petition was filed. before the High Court pointing out that the deeision of this ·oolJrt · in Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr. (2004 (3) :B SCC 1) had full application.A Division Bench of the High Court, by order dated 15.02.2006 directed deposit of Rs.2.00 Crores. The said order was questioned in S.L.P.(C) No.5314/2006. In the said special leave petition, several States and Union Terri-tories were impleaded as opposite parties because it was pointed out that requisite tax under the Act had already been paid in different States and Union territories. This Court passed the following order on 31.03.2006:

"Issue notice.

There shall be interim stay in the meanwhile.

Any payment. already made in compliance of the High Court's order shall be without prejudice to the claims involved."

few days thereafter, on 19.04.2006, the Assistant Com-missioner disposed of the appeal filed dismissing the same and confirming the order of assessment. Second Appeal was filed before the Orissa Sales Tax Tribunal (in short the Tribunal). An application for stay was also filed. By order dated 14.08.2006, the Commissioner directed deposit of Rs.15.00 Crores. The said order was challenged before the High Court and, as noted above, by the impugned order, the High Court disposed of the said peti-tion without expressing any opinion on merits but observing that the matter was under examination by this Court.

4. Though various points were urged in respect of the ap-

peal, learned counsel for the appellant submitted that even with-out examination of various issues raised, by cryptic and prac-tically non-reasoned order, the Assistant Commissioner has dismissed the appeal filed.

[2008] 10 S.C.R.

5. It is submitted that statutory appeal should not be dis-posed of in such casual manner. It is pointed out that notwith-standing the fact that tax has been paid in several States where the articles transferred the Branches have been sold, the State has erroneously treated the transactions to be inter-state sale and levied tax which in essence amounts to double taxation. It is sub-mitted that this is nothing but an attempt to collect tax illegally. It is j , •. not legal and is in clear violation of Article 265 of the Constitution of is in clear violation of Article 265 of the Constitution of in clear violation of Article 265 of the Constitution of clear violation of Article 265 of the Constitution of of Article 265 of the Constitution of Article 265 of the Constitution of of the Constitution of the Constitution of of India, 1950 (in short the 'Constitution'). It is also pointed out that the ratio of the decision of this Court in Ashok Leyland Limited v. Union of India India & Ors. (1997 (9) SCC 10) has not been kept in view. It is in view. It is view. It is submitted that an amendment to the Act has been made and Sec-tion 19 has been introduced which reads as follows:

, •. not legal and is in clear violation of Article 265 of the Constitution of is in clear violation of Article 265 of the Constitution of in clear violation of Article 265 of the Constitution of clear violation of Article 265 of the Constitution of of Article 265 of the Constitution of Article 265 of the Constitution of of the Constitution of the Constitution of of

of India India & Ors. (1997 (9) SCC 10) has not been kept in view. It is in view. It is view. It is

"19. Central Sales Tax Appellate Authority

(1) The Central Government shall constitute, by notification in the Official Gazette, an Authority to settle inter-State disputes falling under Section 6A read with Section 9 of this Act, to be known as "the Central Sales Tax Appellate Authority (hereinafter referred to as the Authority)".

(2) The Authority shall consist of the following Members appointed by the Central. Government, namely:-

(a) Chairman, who is retired Judge of the Supreme Court, or retired Chief Justice of High Court; ·

(b) an officer of the Indian Legal Service who is, or is qualified to be, an Additional Secretary to the Government of India; and

(c) an officer of State Government not below the rank of Secretary or an officer of the Central Government not below the rank of Additional Secretary, who is an expert in sales tax matter.

(2A) Notwithstanding anything contained in sub-section

(2), the Chairman or Member holding post as such in the Authority for Advance Rulings appointed under clause (a) or clause (c), as the case may be, of sub-section (2) of Section 245-0 of the Income Tax Act, 1961 may, in addition to his being the Chairman or Member of that Authority, be appointed as the Chairman or Member, as the case may be, of the Authority under this Act.

(3) The salaries and allowances payable to, and the terms and conditions of service of, the Chairman and Members shall be such as may be prescribed. [c ]

(4) The Central Government shall provide the Authority with such officers and staff as may be necessary for the efficient exercise of the powers of the Authority under this Act."

6. It is pointed out that ultimately the Central Sales Tax

Appellate Authority can decide the matter after the Tribunal in the concerned State decides the matter. It is the stand of the appellant that the Forum provided under the Statute is being rendered un-effective by the casual disposal of the appeal.

7. Learned counsel for the respondent-State of Orissa,

however, submitted that when the assessee has already availed the statutory remedy, no interference is called for.

8. In normal course, we would not have entertained the

plea relating to the merits of the assessment when statutory remedy has been availed. But what shocks us is the casual manner in which the first appellate authority has disposed of the appeal. The appellate order covers pages 36 to 42 in the paper book. The first page and part of the second page deal with various data relating to the assessment order, the assess-ing officer, the registration number and the details of turnovers and the tax etc. In paragraph (2), the observations of the as-sessing officer are noted and in paragraph 3, starting from pages 39 to 41, different stands of the appellant have been

noted. In paragraph 4, the conclusions of the first appellate au-thority are noted. They read as follows:

"I have carefully gone through the impugned order of assessment, averments of the learned advocate and the materials available on record. On the first point of dispute regarding the claim of the appellant towards refund of Tax of Rs.14,59.122.52 collected from the bidders, before this forum also the Appellant failed to adduce any evidences regarding refund of tax to such bidders from whom tax was collected. In absence of such documentary evidences, the claim of the appellant is not credible.

On the second point of dispute regarding levy of tax on the sale turnover of Rs, 1,21,03375.18 due to non furnishing of declarations in for·ms. Hence, there is no interference from this forum on the observation of the learned S.T.O., in levying tax under Section 8 (2) (B) of the CST Act.

Lastly on the point of rejection of the claim of the appellant towards branch transfer of goods valued at Rs.241,87,42, 357.93 from the order of assessment it is found that the learned S.T.O. on due verification and proper examination of the material evidences has rightly taken by the learned counsel of the appellant company and the decisions of the different courts cited are not applicable in the present case, the same is not considered."

9. bare reading of the order shows complete non- appli-cation of mind. As rightly pointed out by learned counsel for the appellant, this is not the way statutory appeal is to be disposed of. Various important questions of law were raised. Unfortunately, even they were not dealt by the first appellate authority.

10. Reason is the heartbeat of every conclusion. ltintroduces clarity in an order and without the same it becomes lifeless. (See Raj Ki shore Jha v. State of Bihar 2003 ( 11) SCC. 519)

11. Even in respect of administrative orders Lord Den-H [ning, M.R. ][in ][Breen v Amalgamated Engg. Union ][(1971) 1 All ]

ER 1148, observed: ''The giving of reasons is one of the funda'"' mentals of good administration." In Alex_ander Machinery (Dudley) Ltd. v. Crabtree 1974ICR120(NIRC) it was observed: "Failure to give reasons amounts to denial of justice." "Reasons. are live links between the mind of the decision-taker to the con-troversy in question and the decision or conclusion arrived at."·. Reasons substitute subjectivity by objectivity. The emphasis on · recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually im-possible for the courts to perform their appellate function or ex-ercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of sound judicial system; reasons at least sufficient to indicate an appli-cation of mind to the matter before court. Another rationale is that the affected party can know why the decision jias gone. against him. One of the salutary requirements of natural justice is spelling out reasons for the order made; in other words, speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with judicial or quasi-judicial performance.

12. Therefore, in terms of the observations made by this

Court while issuing notice on 19.10.2006, we set aside the im-pugned order of the Assistant Commissioner and remit the mat-ter to him for fresh consideration of the appeal. Needless to say, he has to dispose of the appeal by reasoned order deal-ing with all the points of challenge highlighted by the appellant.

13. We make it clear that we have not expressed any opin-ion on the merits of the case.

14. Considering the fact that similar disputes are recur-ring feature, the first appellate authority would do well to dis-pose of the appeal within period of six months from the date of receipt of copy of our order.

15. The appeal is allowed to the aforesaid extent without any order as to costs.