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IN THE NAGPUR HIGH COURT
K.T. Mangalmurti, P.P. Deo, JJ.
GOVINDJI
Versus
COMMISSIONER OF SALES TAX, MADHYA PRADESH
Miscellaneous Civil Case No. 180 of 1952
Decided On: Decided On : 14-04-1954
SALES TAX - CENTRAL PROVINCES AND BERAR SALES TAX ACT, 1947 - SECTION 23(1), 23(2)(B), 22(5), 22(6), 4(1), 8(3) - LIMITATION - APPLICATION FOR REFERENCE TO HIGH COURT - TIME REQUISITE FOR OBTAINING COPY OF ORDER - WHETHER EXCLUDED - SECTION 12(2) OF LIMITATION ACT, 1908 - WHETHER APPLICABLE - SECTION 29(2) OF LIMITATION ACT - INTERPRETATION - EXPRESSION 'PASSING OF ORDER' - MEANING OF - ORDER DATED 1ST MARCH, 1948 - WHETHER PASSED IN EXERCISE OF POWER OF REVIEW UNDER SECTION 22(6) - AUTHORITY PASSING ORDER - WHETHER HAD POWER TO REVIEW ORDER OF SALES TAX OFFICER GRANTING REGISTRATION CERTIFICATE - ORDER DATED 1ST MARCH, 1948 - WHETHER ACCORDING TO LAW - APPLICANT'S FAILURE TO APPEAL AGAINST ORDER - WHETHER PRECLUDES CONSIDERATION OF QUESTIONS BY BOARD OF REVENUE.
Fact of the Case:
The assessee, a manufacturer of oil for sale, was granted a certificate of registration under section 8(3) of the Central Provinces and Berar Sales Tax Act, 1947, on 30th June, 1947. On 23rd February, 1948, the Assistant Commissioner of Sales Tax issued a notice to the assessee to show cause why his certificate should not be cancelled. The Assistant Commissioner passed an order on 1st March, 1948, cancelling the certificate. The assessee did not appeal against the order but made a representation to the Commissioner on 20th October, 1948, questioning the validity of the order and praying for its cancellation and revival of the certificate. The Commissioner rejected the application and issued a new certificate on 11th April, 1949. The assessee again applied to the Commissioner on 2nd January, 1950, praying for revival of the original certificate from the date of its cancellation. The Commissioner rejected the application and made the new certificate operative from 8th October, 1948. The assessee applied to the Board of Revenue for revision of the order, which was dismissed on 10th March, 1952. The assessee filed an application under section 23(2)(b) of the Act to require the Board of Revenue to make a reference to the High Court. The Board rejected the application as barred by time and on the ground that no question of law arose out of its order dated 10th March, 1952.
Finding of the Court:
The court held that the order dated 1st March, 1948, was not passed in exercise of the power of review under section 22(6) of the Act and that the authority which passed the order had no power to review the order of the Sales Tax Officer granting the certificate. The court also held that the order dated 1st March, 1948, was not according to law and that the applicant's failure to appeal against the order did not preclude consideration of any of the above questions by the Board of Revenue.
Issues: 1. Whether the order dated 1st March, 1948, was passed in exercise of the power of review under section 22(6) of the Act? 2. Whether the authority which passed the order had power to review the order of the Sales Tax Officer granting the certificate? 3. Whether the order dated 1st March, 1948, was according to law? 4. Whether the applicant's failure to appeal against the order precluded consideration of any of the above 3 questions by the Board of Revenue?
Ratio Decidendi: 1. Section 22(6) of the Act empowers any person appointed under section 3 to review any order passed by him. Rule 67 empowers the Commissioner to delegate the power to register a dealer and the power to cancel registration to the Sales Tax Officer. Therefore, the Assistant Commissioner, Sales Tax, had no jurisdiction to pass the order dated 1st March, 1948, reviewing the order of the Sales Tax Officer granting the certificate and to cancel that certificate. 2. The Assistant Commissioner, Sales Tax, had no power to review the order of the Sales Tax Officer granting the certificate. 3. The order dated 1st March, 1948, was not according to law as it was passed without giving the assessee an opportunity to be heard. 4. The applicant's failure to appeal against the order did not preclude consideration of any of the above questions by the Board of Revenue as the order was passed without jurisdiction.
Final Decision: The court directed the Board of Revenue to state the case and refer the questions of law arising out of the order dated 10th March, 1952, to the High Court.
This is an application under section 23(2)(b) of the Central Provinces and Berar Sales Tax Act, to require the Board of Revenue to make a reference as several questions of law are said to arise out of the order of the Board under section 22(5), passed on the 10th March, 1952.
2. The Board of Revenue rejected the application under section 23(1) as barred by time and also on the ground that no question of law arose out of its order dated the 10th March, 1952. That order, rejecting the applicant's application for revision, was signed on the 10th March, 1952, by two members constituting the Division Bench of the Board of Revenue. This date was not fixed for delivery of the order and no notice of this date was given to the parties. On the 12th March, 1952, the applicant received a post card from the office of the Board of Revenue stating that the Application No. 33 was rejected on the 10th March, 1952. It was stated before us that a copy of the order dated the 10th March, 1952, was received by the applicant from the Sales Tax Officer on the 23rd April, 1952. Prior to this, an application for a certified copy of the order was made by the applicant on the 20th March, 1952, and the copy was received by him on the 7th May, 1952. The application for reference was filed on the 12th May, 1952. This application was dismissed as filed on the 63rd day from the 10th March, 1952, while the limitation under section 23(1) of the Act was 60 days from the passing of the order.
3. This Court has jurisdiction to require the Board to make a reference if it is not satisfied that the refusal was justified. If the application for reference was barred by time, the Board was bound to dismiss it and its refusal to state the case was justified.
4. We have, therefore, heard the parties on the preliminary question of limitation and we hold that the order of the Board of Revenue rejecting the application as barred by time was not justified. The order as it stands is clearly unsupportable. According to the Board the limitation in the instant case expired on the 9th May, 1952, even though no date was fixed for delivery of the order and even though intimation of the order had not been given to the assessee. In this view a glut of work in the office of the busy Board of Revenue or the negligence of its subordinates concerted may deprive the assessee of the right of appeal. This cannot be the intention of the Legislature. There must be such "passing of the order" as will not deprive the party aggrieved of his remedies. What the members of the Board of Revenue did in the instant case was simply to sign the order and to send the case to the office. It is not disputed that in case of a Civil Court such an act does not amount to either pronouncing a judgment or passing an order. As already pointed out, section 23(1) provides that an application for reference must be made within 60 days of the passing of the order under section 22(5). According to the learned counsel for the applicant the date of passing such order is the date on which the order is passed in the presence of parties and when the order is reserved or is not signed and delivered on a date fixed for passing the order, of which due notice is given to the parties concerned, the date on which a copy thereof is received by the assessee. The learned counsel relies on The Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu Garu ((1911) I.L.R. 34 Mad. 151), S. Ramanatha Reddiar v. Commissioner of Income-tax ((1928) A.I.R. 1928 Rang. 152), Lal Mohammad Hayat v. Commissioner of Income-tax ((1929) A.I.R. 1929 Lah. 170), and Swaminathan v. Lakshmanan ((1930) A.I.R. 1930 Mad. 490). If this contention is sound, the application is clearly within limitation. If limitation is to be counted from the 12th March, 1952, the application was made on the 61st day and is barred by time.
5. The other submission of the learned counsel for the applicant is that he is entitled to the exclusion of the time
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