1. In substance, the question which the High Court is being asked to determine in this proceeding is whether the Sales Tax Tribunal was justified in extending the time prescribed for filing an appeal to the Appellate Assistant Commissioner of Sales Tax.
2. The Sales Tax Officer assessed the respondents by an order dated 6th October, 1965, which was served on them on the same day. Section 55(4) of the Bombay Sales Tax Act, 1959, prescribes a period of 60 days for filing an appeal to the Appellate Assistant Commissioner. This period expired on the 5th of December, 1965. The respondents filed an appeal to the Appellate Assistant Commissioner on he 29th of April, 1966, which was apparently beyond time by more than four months. The Assistant Commissioner dismissed the appeal on the narrow ground that it was barred by limitation. The respondents carried an appeal from that decision to the Sales Tax Tribunal which has taken the view that the respondents had sufficient cause for not filing the appeal within the prescribed period. Consistent with this view the Tribunal has remanded the appeal to the Assistant Commissioner for being considered on merits.
3. The application filed by the petitioner, the Commissioner of Sales Tax, to the Sales Tax Tribunal under, section 61(1) of the Bombay Sales Tax Act, 1959, asking that two questions, be referred to the High Court was dismissed by the Tribunal. This petition is therefore filed by the Commissioner under the proviso to section 61(1).
4. The two questions which the petitioner raises on this petition are : Whether on the facts and in the circumstances of the case the conclusion of the Tribunal that there was sufficient cause for condoning the delay is perverse and whether the Tribunal was correct in law in holding that the respondent-company was justified in not filing appeal before it came to know the decision of the Supreme Court in Messrs Khosla's case : 3SCR352 and that the cause of action for filing an appeal arose only when the Supreme Court gave its decision in Messrs Khosla's case : 3SCR352 .
5. As we have stated at the outset of this order, the real question which is raised in this petition is whether the Tribunal was justified in taking the view that the respondents had sufficient cause for not preferring the appeal before the Appellate Assistant Commissioner within the time prescribed by law.
6. In our opinion, this does not raise any question of law and therefore this petition is liable to be rejected.
7. Apart from this position, the Tribunal seems to us to be justified in the view which it has taken. The contention of the respondents is that it was only after the Supreme Court delivered its judgment in Khosla's case : 3SCR352 on the 18th of January, 1966, that they could think of filing an appeal against the order dated 6th October, 1965, of the Sales Tax Officer. The judgment of the Supreme Court in Khosla's case : 3SCR352 appeared in the 'Short Notes of Sales Tax Cases' in March, 1966, and the Tribunal accepted the contention of the respondents that they acted with promptness thereafter and filed the appeal on the 29th of April, 1966, without undue delay.
8. In Kamala Mills Ltd. v. State of Bombay : 57ITR643(SC) , certain outside sales were included in the turnover and the assessee was called upon to pay sales tax in respect of those sales. After the Supreme Court pronounced its judgment in what is known as the Bengal Immunity case : 2SCR603 , the assessee instituted a suit in the Bombay High Court for refund of the sales tax paid on outside sales on the ground that in view of the judgment in the Bengal Immunity case : 2SCR603 , the tax was recovered illegally by the Government. The Supreme Court held that the Sales Tax Act was a self-contained code, that section 20 was a bar to the suit and that the proper remedy for the assessee was either to file an appeal or to apply for revision and ask for condonation of delay on the ground that the mistake which was responsible for the recovery of the tax illegally levied was discovered only when the judgment was pronounced by the Supreme Court in the Bengal Immunity case : 2SCR603 . The Supreme Court added that such a plea would have been competent.
9. The course adopted by the respondents in the present case is in conformity with the judgment of the Supreme Court and if the matter is looked at from that point of view it would be futile to admit this petition.
10. For these reasons, we dismiss this petition and discharge the rule with costs.
11. Petition dismissed.