An order by a High Court refusing to direct a tribunal to state a case is consultative and not a final order passed in original or appellate jurisdiction; therefore, it is not appealable under the Letters Patent.

JUDGMENT

FAZL ALI, J. –

This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September, 1948, declining to call upon the Board of Revenue to state a case under Section 21 (3) of the Bihar Sales Tax Act, 1944 (Act VI of 1944) with reference to an assessment made under that Act.

The Bihar Sales Tax Act was passed in 1944, and Section 4 of the Act provides that "every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs. 5,000 shall be liable to pay tax under the Act on sales effected after the date so notified." It is not disputed that, having regard to the definitions of dealer, goods and sale under the Act, the appellant, who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway, comes within the category of a dealer mentioned in Section 4 . Section 7 of the Act provides that "no dealer shall, while being liable under Section 4 to pay tax under the Act, carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate." In pursuance of this provision, the appellant filed an application for registration on the 19th December, 1944, and a certificate of registration was issued to him on the 21st December, 1944. On the 8th October, 1945, the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under Section 10(5) of the Act. Section 10(5), under which the notice purported to have been issued, runs thus :-

"If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and the Commissioner may direct that the dealer shall pay, by way of penalty, in addition to the amount so assessed, a sum not exceeding one and a half times that amount."

The appellant appeared before the Sales Tax Officer in response to this notice, but obtained several adjournments till 16th March, 1946, and ultimately failed to appear. Thereupon, he was assessed by the Sales Tax Officer according to the best of his judgment, and was ordered to pay Rs. 4,526-13-0 as tax and a penalty amounting to one and a half times the amount assessed, under Section 10(5) of the Act. The appellant appealed to the Commissioner against the assessment and the penalty levied upon him, but his appeal was dismissed on the 6th June, 1946. He then filed a petition for revision to the Board of Revenue, against the order of the Commissioner, but it was dismissed on the 28th May, 1947. He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of its order of the 28th May, but Mr. N. Baksi, a Member of the Board, by his order of the 4th December, 1947, rejected the petition with the following observations :-

"No case for review of my predecessor's order made out. No reference necessary."

Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and s