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Commissioner of Sales Tax Vs. Ramkrishna Kulwantrai - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMumbai High Court
Decided On
Case NumberSales Tax References Nos. 149, 150 and 151 of 1976
Judge
Reported in[1979]43STC137(Bom)
ActsBombay Sales Tax Act, 1959 - Sections 38, 55, 55(4), 60, 61(1), 71 and 71(1)
AppellantCommissioner of Sales Tax
RespondentRamkrishna Kulwantrai
Appellant AdvocateG.S. Jetly and ;R.A. Dada, Advs.
Respondent AdvocateB.S. Joshi, ;P.C. Joshi and ;A. Thakkar, Advs.
Excerpt:
.....order within meaning of section 55 (4) of act as required by law - authority to receive any notice or document in connection with assessment proceedings did not include an authority to receive assessment orders - no valid communication of assessment orders - order passed by tribunal confirmed. - - the said authority, in terms, was 'to receive on behalf of the said firm (respondents) any notice or document issued in connection with the said proceedings'.the only question which has to be considered is whether an assessment order can be considered to be included within the connotation of the term 'document'.the very fact that the said form 43-a and the said authority refers to 'any notice or document' would clearly show that the word 'document' was not used in the said form and..........are a firm registered as a dealer under the said act, in respect of the said periods by separate orders of assessment on 30th october, 1965. these orders of assessment along with the demand notices were served on one roshanlal, an employee of the respondents, on 13th november, 1965. thereafter three appeals were filed against the said assessment orders before the assistant commissioner of sales tax on 4th february, 1966. it was contended before the assistant commissioner of sales tax by the learned advocate for the respondents that the respondents had paid the tax in respect of the aforesaid periods under a mistake of law and the respondents were entitled to recover the same within three years from realisation of the mistake. it was submitted that, in view of this, the appeals should.....
Judgment:

Kania, J.

1. These are three references 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. There is a common question referred to us in all these three references and that question runs as follows :

'Whether, on the facts and circumstances of the case and having regard to the scope of the written authority dated 19th April, 1963, given by the responded to Shri Roshanlal, the Tribunal was correct in law in holding that the service of assessment order on Sri Roshanlal did not amount to a communication of the said assessment order within the meaning of section 55(4) of the Act as required by law ?'

The facts giving rise to these references are as follows :

Sales Tax Reference No. 149 of 1976 relates to the period 16th May, 1960, to 31 March, 1961, Sales Tax Reference No. 150 of 1976 relates to the period 1st April, 1961, to 31st March, 1962, and Sales Tax Reference No. 151 of 1976 relates to the period 1st April, 1962, to 31st March, 1963. The Sales Tax Officer assessed the respondent-assessees, who are a firm registered as a dealer under the said Act, in respect of the said periods by separate orders of assessment on 30th October, 1965. These orders of assessment along with the demand notices were served on one Roshanlal, an employee of the respondents, on 13th November, 1965. Thereafter three appeals were filed against the said assessment orders before the Assistant Commissioner of Sales Tax on 4th February, 1966. It was contended before the Assistant Commissioner of Sales Tax by the learned Advocate for the respondents that the respondents had paid the tax in respect of the aforesaid periods under a mistake of law and the respondents were entitled to recover the same within three years from realisation of the mistake. It was submitted that, in view of this, the appeals should be held to have been filed within the prescribed time. The respondents also applied for condonation of delay, if any. These contentions were rejected by the Assistant Commissioner of Sales Tax and the appeals were summarily rejected by him on the ground that they were time-barred. The respondents then filed three second appeals before the Sales Tax Tribunal. Before the Tribunal, it was, inter alia, contended by the respondents that the assessment orders were not properly served on them inasmuch as they were not communicated personally to the respondents, the service of the same having been effected on the said Roshanlal, who was an employee of the respondents. It was also contended that as there was no proper communication of the assessment orders to the respondents, the question of condonation of delay did not arise, because the period of limitation had not begun to run at all till the appeals were actually filed before the Assistant Commissioner of Sales Tax, when it could be deemed that the assessment order were communicated to the respondents. On behalf of the department it was submitted that, although the assessment orders were not served personally on the respondents, they were served on Roshanlal and that amounted to proper service by reason of the written authority dated 19th April, 1963, given by the respondents in favour of the said Roshanlal. The Tribunal upheld the contention of the respondents that there was no valid communication of the assessment orders to the respondents in law, inter alia, on the ground that the authority issued in favour of the said Roshanlal was defective for the reasons mentioned in the judgment of the Tribunal and that even assuming that it was a valid authority granted under section 71 of the said Act, it terminated when the orders of assessment were passed and could not be availed of for the service of the assessment orders on the holder of the authority. It may be mentioned here that the said authority pertains only to the first two periods, viz., 16th May, 1960, to 31st March, 1961, and 1st April, 1961, to 31st March, 1962. There was no specific authority regarding the period 1st April, 1962, to 31st March, 1963.

2. Before going into the contentions raised before us it would be useful to take note of the relevant provisions of the said Act and the Rules made thereunder at this stage. Section 55 of the said Act deals with appeals and sub-section (4) thereof runs as follows :

'Subject to the provisions of section 60, no appeals be entertained unless it is filed within sixty days from the date of the communication of the order appealed against.'

3. Rule 38 of the Bombay Sales Tax Rules, 1959 (hereinafter referred to as 'the said Rules'), deals with the question of supply of a copy of an order of assessment and sub-rule (1) thereof runs as follows :

'A certificate copy of an order of assessment shall be furnished to the assessee free of charge along with the notice issued in accordance with sub-section (4) of section 38.'

4. It may be noted here that the notice issued in accordance with sub-section (4) of section 38 of the said Act is a notice of demand. Chapter XII of the said Rules, as it stood at the relevant time, namely, before its amendment on 21st November, 1966, dealt with the question of service of notices. Rule 68 is included in the said chapter. The material portion of the said rule, as it stood at the relevant time, read as follows :

'(1) Notices under the Act or under these rules shall be served by one of the following methods :- (a) by delivery by hand of a copy of the notice to the addressee or to a person declared by him in form 13 or to any other agent duly authorised in this behalf by him, or to a person regularly employed by him in connection with the business in respect of which he is registered as a dealer, or to any adult male member of his family residing with the dealer; ......'

5. What is significant is that this rule was amended on 21st November, 1966, and the said rule thereafter also provided for service of a copy of an order as set out therein. Section 71 of the said Act deals with appearance before any authority in proceedings under the said Act. Rule 66A of the said Rules, prior to its amendment in July, 1965, provided that the authority to attend under clause (a) of sub-section (1) of section 71 of the said Act shall be in form 43-A. Form 43-A provided that the person granted authority in accordance with the said form would, inter alia, be authorised to receive on behalf of the assessee any notice or document in connection with the proceedings described in the said authority. In the present case, the authority given to the said Roshanlal in form 43A has been set out by the Tribunal in its judgment and it is not necessary for us to set out the same here. As pointed out by the Tribunal, there are several mistakes in the said letter of authority and there are also several cancellations which should have been made, but which have not been made in that authority. That authority does not even describe the authority under the Act before whom the person authorised, viz., the said Roshanlal, was authorised to act and appear. Apart from this, the said authority was 'to produce accounts and documents and to receive on behalf of the said firm (respondents) any notice or document issued in connection with the said proceedings and to take all necessary steps in the said proceedings'.

6. The first question which needs to be considered in connection with this authority is regarding the point of time at which the said authority can be said to terminate. In view of the observation of the Supreme Court in Sales Tax Officer v. Sudarsanam Iyengar & Sons : [1970]1SCR859 , it must be taken as firmly established that assessment proceedings under the said Act must be held to be pending from the time the proceedings are initiated until they are terminated by a final order of assessment. This makes it clear that the proceedings under the said Act come to an end with a final order of assessment. In the present case, the final orders of assessment are dated 30th October, 1965, and they were served on Roshanlal a few days thereafter on 13th November, 1965. It, therefore, appears to us that at the time when the service of the said orders was effected on Roshanlal, the aforesaid authority had already come to an end even in respect of the first two periods, namely, 16th May, 1960, to 31st March, 1961, and 1st April, 1961, to 31st March, 1962. As far as the third period, namely, 1st April, 1962, to 31st March, 1963, is concerned, as we have already pointed out, there was no authority at all and the authority granted in respect of the earlier periods could not extend to the said last period.

7. Even apart from this, it appears to us that the aforesaid authority did not authorise Roshanlal to receive and order of assessment. The said authority, in terms, was 'to receive on behalf of the said firm (respondents) any notice or document issued in connection with the said proceedings'. The only question which has to be considered is whether an assessment order can be considered to be included within the connotation of the term 'document'. The very fact that the said form 43-A and the said authority refers to 'any notice or document' would clearly show that the word 'document' was not used in the said form and the authority in its widest sense as including all documents. If that were so, there was no need to refer specifically to the word 'notice' therein at all. Moreover, the amendment of rule 68 of the said Rules, to which we have referred earlier, clearly shows that an order was not considered to be included in the connotation of the term 'document' by the framers of the said Rules. It is also significant that clause (1) of rule 69 of the said Rules, which deals with the question of certificate copies of documents, reads as follows :

'Any person who is a party to a proceeding under the Act or under these rules may apply to the appropriate authority having jurisdiction in respect of such proceeding or having the custody of the records pertaining thereto, for a certificate copy of a document produced or filed in such proceeding or of an order passed by such authority.'

8. This would again show that an order is not regarded as being included in the term 'document'. In view of this, in our opinion, the authority to receive any notice or document in connection with the assessment proceedings did not include an authority to receive the assessment orders. In our view, the Tribunal was correct in the conclusion at which at arrived.

9. In the result, the question referred to us in all the three references is answered in the affirmative. The applicant to pay to the respondents the costs of these three references.

10. Reference answered in the affirmative.


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