An application for reference to the High Court under Section 21 of the Bihar Sales Tax Act, 1944 must be filed within 60 days from the date of the order of the Board of Revenue.

Ramaswami, J.

1. In this case the petitioner was assessed to sales tax under Sec.10(5), Bihar Sales Tax Act by the Sales-tax Officer of Darbhanga on a taxable turnover of Rs. 3,78,084 for the period from 1-7-1946 to 31-3-1947. The tax assessed was Rs. 5907 and odd and a penalty equal to the amount assessed was also imposed on the petitioner. The assessment order is dated 29-9-1948. The assessee filed an appeal before the Commissioner of Sales-tax. The appeal was allowed and the case was remanded to the Sales-tax Officer for further action. An application in revision was filed before the Board of Revenue on 2-6-1949 on behalf of the petitioner. The application was rejected by the Board by its order dated 5-9-1949. The petitioner then filed an application on 3-12-1949 requiring the Board of Revenue to refer certain questions of law for the determination of the High Court. The Board of Revenue heard the parties on 22-7-1950, and rejected the application for reference on the same date. Being dissatisfied with the order of the Board the petitioner filed an application to the High Court who asked the Board of Revenue to state a case on the following question of law :

Whether on the facts and circumstances of the case the applicant is a dealer within the meaning of Bihar Sales Tax Act 6 of 1944, and is liable to be taxed as such?"

2. When the hearing commenced Mr. Gopal Prasad on behalf of the State of Bihar raised a preliminary objection that the petitioner applied to the Board of Revenue for making reference to the High Court more than sixty days after the revision application was dismissed by the Board of Revenue. It was submitted by the learned counsel that the Board of Revenue rightly refused to make reference and the High Court ought not to have called for a statement of the case under Sec.21(3), Bihar Sales Tax Act of 1944. The argument of the learned counsel is founded upon Sections 21(1) and 21(2), Bihar Sales Tax Act of 1944. Section 21(1) states :

"Within sixty days from the passing by the Board of Revenue of any order under Sub-section (3) of Sec.20 affecting any liability of any dealer to pay tax under this Act, such dealer may, by application in writing accompanied by a fee of one hundred rupees, require the Board to refer to the High Court any question of law arising out of such order."

Sec.21(2) provides :

"If, for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the applicant may, within thirty days of such refusal, either (a) withdraw his application (and if he does so, the fee paid shall be refunded) or (b) apply to the High Court against such refusal."

Sec.21(3) is also important. It states :

"If upon the receipt of an application under Clause (b) of Sub-section (2), the High Court is satisfied that such refusal was justified, it may require the Board of Revenue to state a case and refer it to the High Court and on receipt of such requisition the Board shall state and refer the case accordingly."

3. On behalf of the assessee Mr. Baldeva Sahay contended that the case was governed by the Bihar Act 19 of 1947 and that under Sec.25(1) of this Act the assessee may apply to the Board of Revenue for making reference to the High Court within ninety days from the date of the order passed by the Board of Revenue. In this view of the matter Mr. Baldeva Sahay submitted that the application of the assessee was not barred by limitation. In my opinion the argument of Mr. Baldeva Sahay cannot be accepted as correct. The assessment in question in the present case is for the period from 1-7-1946 to 31-3-1947. The Act of 1947 came into force on 1-6-1947. The Act of 1947 while repealing the Act of 1944 provides that

"nothing in this repeal shall affect any liability to pay tax incurred before the date of such repeal and proceedings ending on the said date, as also all proceedings initiated after the commencement of this Act but relating to any such liability as aforesaid shall be continu