1. This is a reference under section 61(1) of the Bombay Sales Tax Act, 1959, (hereinafter referred to as 'the said Act'), made at the instance of the Commissioner of Sales Tax.
2. The question referred to is for our determination is as follows :
'Whether on the facts and in the circumstances of the case the Tribunal was correct in law in holding that the Assistant Commissioner of Sales-Tax had no jurisdiction under section 35 of the Act to reassess the respondent's turnover escaping assessment ?'
The facts giving rise to this reference are as follows :
During the assessment period from 1-4-1964 to 31-3-1965 the assessees (respondents), who are registered as a dealer under the said Act, made certain sales of artificial hair and hair nets. By his assessment order dated 21st September, 1966 the Sales Tax Officer assessed these sales as falling under entry 22 of Schedule E to the said Act and levied tax on the same at the rate prescribed in the said entry. After issuing a notice of reassessment under section 35 of the said Act the Assistant Commissioner of Sales Tax reassessed the assessees in respect of the said sales holding that the same fell within entry 19 of Schedule E to the said Act and levied tax thereon at the higher rate prescribed in the said entry. The assessees preferred an appeal against this order contending that the Assistant Commissioner of Sales Tax had no jurisdiction to reassess the assessees under Section 35 of the said Act and that such an order of reassessment could be passed only by the Sales Tax Officer. This contention was rejected by the Deputy Commissioner of Sales Tax who dismissed their appeal. The assessees then preferred a second appeal before the Sales Tax Tribunal. The Tribunal upheld the aforesaid contention of the assessees and set aside the order of reassessment passed by the Assistant Commissioner of Sales Tax. Arising from this judgment and order of the Tribunal, the questions set out above has been referred to us for our determination.
3. At the outset, at the hearing before us, Mr. Joshi, learned counsel for the respondents, has taken up a contention that the question referred to us has become academic in view of certain events which have transpired, and hence we should decline to answer the question referred to us. In order to appreciate this contention, it is necessary to set out a few further facts. The judgment and order of the Tribunal giving rise to the question referred to us was made on 11th March, 1969. On 5th July, 1969 the applicant before us, the Commissioner of Sales Tax, made an application to the Tribunal for referring the aforesaid question to this Court for its determination under section 61(1) of the said Act. On 7th October, 1969 the Assistant Commissioner of Sales Tax issued a notice under section 57 of the said Act for revising the assessment order passed by the Sales Tax Officer in respect of the assessment period in question. On 29th October, 1969 the Asstt. Commissioner of Sales Tax had actually passed an order revising the order passed by the Sales Tax Officer and assessing the aforesaid sales made by the assessees on the footing that the same fell within entry 19 of Schedule E to the said Act. The assessees have already paid the tax demanded from them under the aforesaid order passed in suo motu revision by the Assistant Commissioner of Sales Tax. In view of these circumstances it is submitted by Mr. Joshi that the question referred to us has become purely academic. It is true, as pointed out by Mr. Cooper, learned counsel for the applicant, that at the time when the reference was made to this Court, on 24th June, 1970, the question referred could not be said to have become purely academic, as the assessees might have gone by way of a writ petition to this Court against the order passed by the Assistant Commissioner of Sales Tax under section 57 of the said Act or, had suitable circumstances arisen, applied for rectification under section 62 of the said Act. These considerations are, however, no longer valid before us, because Mr. Joshi has categorically stated before us that the assessees do not wish to take any proceedings to set aside the order passed by the Assistant Commissioner of Sales Tax in revision. In view if this, the possibilities referred to by Mr. Cooper are no longer existing, and although the question when referred might not have been academic, it is surely so today. We do not wish that we should waste public time in deciding a question which has become purely academic.
4. In the result, we decline to answer the question referred to us. In view of all the facts and circumstances of the case, there will be no order as to costs of this reference.