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Hindustan Metal Works Vs. the Sales Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Sales Tax
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 2263 of 1963
Judge
Reported in[1964]15STC116(All)
AppellantHindustan Metal Works
RespondentThe Sales Tax Officer and ors.
Appellant AdvocateR.R. Agarwala, Adv.
Respondent AdvocateV.K. Burman, Adv.
DispositionPetition allowed
Excerpt:
- - 8. the question that falls for consideration is whether section 9 of the sales tax act contemplates any order of dismissal for default or it necessarily requires the judge (appeals) to dispose of every appeal once it is filed on its merits ? if the answer can be given that section 9 clearly rules out dismissal of an appeal by the judge (appeals) in default and makes it obligatory upon him to hear every appeal that is filed on its merits, then only will it be possible to say that rule 68(5) framed under the powers given under section 24 of the act is inconsistent with the act or in derogation of the act and therefore ultra vires. 10. it will be noticed that the legislature has taken great pains in laying down precisely the scope and ambit of the powers of the appellate court. this.....s.c. manchanda, j.1. this is a writ petition under article 226 of the constitution directed against the order of the judge (appeals) sales tax and the judge (revisions) sales tax in respect of the assessment years 1954-55 and 1955-56, dismissing the appeal filed by the petitioner in default of appearance and the confirmation of that order by the judge (revisions).2. the facts leading up to this petition need not be referred to except in the baldest outline for the reason that the question which arises here primarily concerns the interpretation to be placed on section 9 of the u. p. sales tax act, hereinafter referred to as the act (which is analogous to section 31 of the indian income-tax act, 1922) and rule 68(5) of the u. p. sales tax rules, hereinafter referred to as the rules.3. the.....
Judgment:

S.C. Manchanda, J.

1. This is a writ petition under Article 226 of the Constitution directed against the order of the Judge (Appeals) Sales Tax and the Judge (Revisions) Sales Tax in respect of the assessment years 1954-55 and 1955-56, dismissing the appeal filed by the petitioner in default of appearance and the confirmation of that order by the Judge (Revisions).

2. The facts leading up to this petition need not be referred to except in the baldest outline for the reason that the question which arises here primarily concerns the interpretation to be placed on Section 9 of the U. P. Sales Tax Act, hereinafter referred to as the Act (which is analogous to Section 31 of the Indian Income-tax Act, 1922) and Rule 68(5) of the U. P. Sales Tax Rules, hereinafter referred to as the rules.

3. The petitioner is a partnership firm carrying on business of fabricating and casting of nonferrous metal alloys for sale. The principal place of business is at Hathras. The petitioner was assessed to sales tax for the assessment years 1951-52 and 1952-53. The claim of the petitioner that the sales of copper, tin, nickel and zinc or any alloy containing any of these metals was exempt from levy of sales tax under notification No. ST-3085/X-902(16), 49 dated 3rd August, 1949, issused under the U.P. Sales Tax Act, was not accepted by the Sales Tax Officer. The Judge (Appeals) Sales Tax allowed the appeal of the petitioner against the assessment order aforesaid and upheld the contentions of the petitioner that the said alloy was exempt. The department filed revisions against the aforesaid appellate orders before the Judge (Revisions), who upheld the order of the Judge (Appeals) for the assessment for 1951-52. The department filed a reference to this Court against the aforesaid order of the judge (Revisions) and that reference is still pending. The revision of the department against the order of the Judge (Appeals) for the assessment year 1952-53 is still said to be undisposed of by the Judge (Revisions) because of the aforesaid reference pending in this Court in respect of the previous year.

4. In the assessment proceedings for the assessment year 1953-54 the Judge (Appeals) had, however, taken a different vie from his predecessor against which the petitioner filed a revision which is pending before the Judge (Revisions) Sales Tax.

5. For the relevant assessment years 1954-55 and 1955-56 the Sales Tax Officer assessed the petitioner by his orders dated 31st July, 1957, and 15th February, 1958, respectively, following the vie taken by the Judge (Appeals) in disposing of 1953-54 assessment against which, as already observed, a revision is pending before the Judge (Revisions). Aggrieved by the aforesaid orders the petitioner filed two appeals before the Judge (Appeals). The petitioner also applied for the stay of the hearing of the appeal till the final disposal of the reference by this Court. The learned judge (Appeals), however, rejected the application and dismissed both the appeals for default by his order dated 26th April, 1958. The concluding portion of these orders reads:

As the appellants are absent the appeal is dismissed in default.

6. The petitioner, thereupon, filed revisions to the judge (Revisions) and the order of dismissal was upheld.

7. The petitioner does not appear to have followed the remedy provided by Rule 68(7) of the Rules but has come to this Court challenging the vires of Rule 68(5) inasmuch as it gives the appellate court the power to dismiss an appeal for default.

8. The question that falls for consideration is whether Section 9 of the Sales Tax Act contemplates any order of dismissal for default or it necessarily requires the Judge (Appeals) to dispose of every appeal once it is filed on its merits If the answer can be given that Section 9 clearly rules out dismissal of an appeal by the Judge (Appeals) in default and makes it obligatory upon him to hear every appeal that is filed on its merits, then only will it be possible to say that Rule 68(5) framed under the powers given under Section 24 of the Act is inconsistent with the Act or in derogation of the Act and therefore ultra vires. If, on the other hand, Section 9 makes it clear that a duty is cast on the Judge (Appeals) to consider every appeal that is filed not only in the interest of the party concerned but in the general interest of tax payers and the revenues of the State, then the rule providing for dismissal in default would be inconsistent and in excess of the powers conferred on the rule-making authority. The question that arises in this case is not covered by any direct authority under the Sales Tax Act of this State or any other State nor under the provisions of Section 31 of the Income- tax Act, 1922, where the provision is analogous, and the case, therefore, has to be decided on first impressions.

9. Let me, therefore, first examine the relevant section which is Section 9 of the Act. It runs:

(1) Any dealer objecting to...or to an assessment under Section 7...may within 30 days from the date of service of the copy of the order or notice of assessment as the case may be, appeal to such authority as may be prescribed :

Provided that no appeal against an assessment shall be entertained unless it is accompanied by a satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable.

Provided, secondly, that the appellate authority shall not exercise any powers or perform any further function except those conferred on or entrusted to him as such authority.

(2) The appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(3) The appellate authority may, after giving the appellant a reasonable opportunity of being heard-

(a) confirm, reduce, enhance or annul the assessment; or

(b) set aside the assessment and direct the assessing authority to pass fresh order after such further inquiry as may be directed; or

(c) confirm or cancel the order imposing penalty or reduce the amount of penalty imposed.

10. It will be noticed that the Legislature has taken great pains in laying down precisely the scope and ambit of the powers of the appellate court. Very wide powers, undoubtedly, are given, but they are not plenary. The powers are circumscribed and what the Judge (Appeals) can do is specifically provided. The second proviso to Sub-section (1) of Section 9 is also worthy of note as the Legislature has again been at pains, perhaps, by way of abundant caution, to lay down that the appellate authority under the Sales Tax Act was not permitted to exercise any power or perform any other function except those conferred on or entrusted to him as such authority. This would seem to rule out any notions of the exercise of inherent powers which are presumed to vest in all judicial and quasi judicial bodies. To that extent the second proviso would restrict the powers and functions of the appellate authority under Section 9 of the Act, to those powers and functions only which are specifically provided under the Act or prescribed under the rules, provided such rule is not inconsistent with the provisions of the Act.

11. Section 9 is not in pari materia with Section 31 of the Income-tax Act, 1922, hereinafter referred to as the Income-tax Act, but it is analogous and undoubtedly takes its inspiration from that Section. Section 31 of the Income-tax Act does not contain a provision similar to the second proviso to Sub-section (1) of the Act. Though Section 31 of the Income-tax Act 'has been on the statute book for about 4 decades, no case has come before the Courts in respect of the dismissal of an appeal for default made by the Appellate Assistant Commissioner (hereinafter referred to as the A. A. C), under that section. The only case under that section which came up for consideration was in respect of the power of withdrawal of the appeal by the appellant when he discovers that there might be a possible enhancement by the A.A.C. That was a case decided, as far back as 1937, by the Lahore High Court in Commissioner of Income-tax, Punjab v. Nawab Shah Nawaz Khan [1938] 6 I.T.R.370. There the question for decision was whether an appeal presented under Section 30 of the Income-tax Act can be withdrawn If so, whether the notice for enhancement could be legally given after the appeal had been asked to be withdrawn? The question was answered by holding that the appellant could not withdra the appeal and threfore the notice of enhancement could be legally given. In this connection it was observed :-

The Income-tax Act is a special piece of legislation dealing with a special subject and so far as it goes it is selfcontained. It will be seen that whereas the powers of a Civil Court are vested in the Income-tax Authorities by virtue of Section 37 of the Income-tax Act, they have been restricted to the particular matters dealt with in the body of the section itself. This clearly shows that in all other matters the Income- tax Authorities cannot exercise the power ordinarily vested in a Civil Court. Similarly, they are under no obligation to conform to the procedure laid down in the Civil Procedure Code in respect of matters not expressly mentioned in Section 37. A right of appeal under the Act has been conferred by Section 30 of the Income-tax Act and the method of disposing of appeals and the powers to be exercised in connection therewith have been clearly denned in Section 31 of the Income-tax Act. These powers, among others, include enhancement of the assessment. Nowhere, however, has it been mentioned that an assessee is at liberty to withdra an appeal which has once been presented under Section 30 of the Income-tax Act. If it were assumed that the power of withdrawal of an appeal vested in an assessee on the general principles of la governing appeals, it would clearly nullify the powers of the Assistant Commissioner to enhance an assessment inasmuch as at any time that an assessee would be convinced that the Assistant Commissioner was disposed to enhance the assessment, he could withdra the appeal and thus prevent him from proceeding any further with the matter. In other words, this would obviously lead to an absurd result. It is to avoid such an absurdity and similar other complications which might arise, that no power of withdrawal has been vested in the assessee. We are supported in our conclusion by R. v. Income Tax Special Commissioners ; Ex parte Elmhirst (1936) 52 T.L.R. 143 which lays down that an appeal against an assessment cannot be withdrawn. It is true that that judgment has been given under a statute which is not in force here, but the principles governing the question are the same.

12. The last mentioned English case has been attempted to be distinguished by Mr. Gopi Nath, the learned Junior Standing Counsel for the department on the ground that Section 139 of the English Act which was under consideration there had specifically provided for the issue, of the precept to the appellant by the Special Commissioners. before whom the appeal was filed, and the mandatory issue of such a precept saddled the Commissioners with a duty to examine the facts and they were bound in each and every case to give effect to what appeared to them to be a proper assessment to be made in vie of those facts. It was on the interpretation of Section 139 of that Act that Lord Wright. M.R., had observed:-

It would indeed be a curious position if, notice of appeal having been given by the taxpayer in the hope of reducing his assessment, he should be able, when the information elicited shows quite conclusively that the assessment, so far from being an overcharge, was an undercharge, and possibly a very serious undercharge indeed, to prevent the Commissioners from estimating or valuing or assessing the taxpayer's liability according to the true facts which had been elicited, or that they should be debarred from proceeding further to develop the facts so that they can feel that they have ascertained the true position.

Earlier Lord Wright, M. R., at page 393 had observed :-

The conclusion I dra from the code, is that the Commissioner, having set before them the duty of ascertaining and settling according to the best of their judgment the sum on which the taxpayer ought to be assessed, are required to make the assessment in accordance with that judgment, and in vie of that I find it quite impossible to accept the argument that the giving of the notice of appeal is merely, as it were, a sort of offer, or is merely an act from which the taxpayer can at his discretion at any time resile, subject to his obeying the precepts and so forth, and that he can at any moment prevent the Commissioners from ascertaining and settling the sum to be assessed by the simple process of intimating by word or by deed that he withdraws from the appeal, or rather that he withdraws the notice of appeal, and that there is no appeal1 pending at all.

13. It is true that there is no provision similar to Section 139 of the English Act, in Section 9 of the Sales Tax Act, or Section 31 of the Income-tax Act, but the very existence of the power to enhance in both those sections given to the Judge (Appeals) and the Appellate Assistant Commissioner would, in my judgment, necessarily bring into play the principles laid down in the case of exparte ElmhirsL It would appear that once an appeal has been filed by the assessee, a duty is cast on the Appellate Assistant Commissioner and the Judge (Appeals) to consider not only the question in the interests of the assessee as to whether, he had been overassessed but also in the larger public interest to see whether the assessee had been underassessed and in the latter event to enhance the assessment.

14. I have quoted the passages from the judgment of Lord Wright, M. R., for the reason that though the question of withdrawal of appeal does not arise for consideration directly in the present writ petition but the power of enhancement with which is linked the power of withdrawal by the appellant of an appeal filed by him has undoubtedly a connection with the scope and powers given to the Judge (Appeals) or the Appellate Assistant Commissioner of confirming, annulling, enhancing or setting aside the assessment. If the general power of withdrawal which normally exists with an appellant who has filed the appeal is taken away under the special Act for the reason albeit that it would defeat the powers of the appellate court to enhance the assessment, it would also have a bearing on the power of the appellate court to dismiss such appeal for default. It would lead to absurd results if the appellant has no power to withdra the appeal filed by him and yet the appellate court should have the power to dismiss the appeal for default. The section must be read so that the rights and powers of the appellate court are not in any way inconsistent with the rights of the appellant who lodges the appeal. If the appellant has no power to withdra the appeal then it is only logical and consistent to hold that a duty is cast on the appellate court in the larger public interest to consider every appeal that is filed on its merits, otherwise absurd results might ensue inasmuch as the appellant would have no right to withdra his appeal and the appellate court would also have no duty to consider the appeal on its merits and could proceed to dismiss it in default.

15. It will be noticed that the word 'enhance' in Sub-clause (3)(a) fall in between the words 'confirm, reduce or annul the assessment' in Sub-clause (a) of Section 9(3) of the Act. Enhancement, annulment or reduction of the assessment cannot reasonably be made without the application of the mind to the facts of the case. Only if it could be said that the powers which are given under Section 9(3)(a) of the Act to the appellate court can be exercised without the application of the mind by the appellate court, then it may be possible to say that such Court had the power to dismiss for default.

16. Mr. Gopi Nath, the learned Standing Counsel for the department, has contended that the word 'confirm' in Section 9(3)(a) of the Act has relation only to the power that is given to the appellate court, but the manner in which that power is to be exercised, the function or the procedure necessary therefore, is not in any way circumscribed by Section 9. As the result of the dismissal of the appeal filed by the assessee is necessarily the confirmation of the assessment then ho that result is to be achieved, whether by the hearing of the appeal exparte or in default, are mere matters of function or procedure for which the rule- making power could have framed a rule, and Rule 68(5) of the Rules, having been framed in the exercise of the powers conferred under Section 24 of the Act, cannot be declared to be ultra vires unless it is wholly inconsistent with Section 9 of the Act. For this proposition reliance is placed on the Supreme Court decision in State of U. P. v. Lakshmi Ice Factory A.I.R. 1963 S.C. 399. That was a case where the vires of the statutory orders made under Section 3, Clause 9(7), of the Industrial Disputes Act, 28 of 1947, came up for consideration. The statutory order that was issued under the powers given by Section 3 of Act 28 of 1947 was to the effect that the award shall be pronounced in open Court. The contention of learned counsel before the Supreme Court was that Clause 9(7) of the statutory order was ultra vires as being in conflict with the Act under which it had been framed. The argument was that under Section 6 of that Act all that the Tribunal had to do was to submit its award to the Government after the conclusion of the enquiry before it and the section did not require the Tribunal to pronounce its decision in open Court and as such Clause 9(7) conflicted with Section 7 and was ultra vires. This argument was repelled by the Supreme Court in these words:-

It seems to us that this contention of Mr. Aggarwala is without any foundation. Section 6 when it requires that the Tribunal shall submit its award to the Government necessarily contemplates the making of the award. Neither Section 6 nor any other provision in the Act provides ho the award is to be made. Under Section 3(g) however the Government has power by general or special order to provide for incidental or supplementary matters necessary for the decision of an industrial dispute referred for adjudication under any order made under Section 3. The provision as to the pronouncement of the decision in open Court in Clause 9(7) of the statutory order clearly is within the powers contemplated in Section 3(g). Section 6 does not prohibit the making of such a provision. Its main purpose is to direct that the Tribunal shall submit the award to the Government so that it may be enforced. It has nothing to do with the manner in which the Tribunal is to make its award. A rule duly framed under the Act requiring the Tribunal to pronounce its decision in open court is therefore not in conflict with Section 6.

17. According to the learned Standing Counsel, the dismissal of the appeal in default is merely the manner of confirming the assessment, and is not in conflict with the power conferred under Section 9, which is to confirm the assessment, and in the absence of any express prohibition in Section 9 of the Act to the dismissal of an appeal in default, Rule 68(5) ought not to be declared to be ultra vires. The Supreme Court authority relied upon, however, is clearly distinguishable. The matter which arose there was a pure and simple matter of functions and procedure. It had nothing to do with the powers of the Tribunal in disposing of the dispute. All that Clause 9(7) of the statutory order had provided was that the award should be pronounced in open court. That was certainly a matter incidental or supplementary to the powers of making an award given by the Statute to the Tribunal. In the present case if it can be said that the power to dismiss an appeal in default is merely an incidental or supplementary matter to the power of confirming the assessment given under Section 9, then only will it be possible to uphold Rule 68(5) as being intra vires, If the said rule gives an additional power of dismissing an appeal in default, which is not provided for in Section 9, then manifestly the rule would be ultra vires. The dismissal of an appeal no doubt achieves the same objective as the confirmation of the assessment, for an appeal to the Judge (Appeals) against the order of the Assessing Officer is only permitted to the assessee, and if that appeal is dismissed for default then the necessary consequence is that the assessment stands confirmed. The matter, however, is not as simple as that and if it were as simple as that, the Legislature would have simply used the word 'allow' or 'dismiss' the appeal instead of going to infinite pains of specifying exactly what the appellate court can do. The great pains which the Legislature has taken in enacting Section 9 of the Act and in circumscribing the powers of the appellate court goes to sho that it was more concerned with the means than the end. The dismissal of the appeal for default no doubt results in the confirmation of the assessment as much as an appeal dismissed on merits and though both may lead to the same end but the means for achieving that end in the two cases are wholly incompatible, divergent and different.

18. The word 'confirm', prim a facie, connotes the application of the mind and not merely an act which can be automatically performed in the absence of a particular party. In Corpus Juris Secundum, Vol. XV, the word 'confirm' in the present tense means: 'To corroborate or verify ; to establish, to give ne assurance or truth or certainty or to put past doubt, to make certain, firm, firmer or sure ; to ratify or to render valid by formal consent; to ratify what has been done without any authority or insufficiently; to strengthen, sanction or ratify.' Similarly, in R.R. Iyer's La Lexicon the word 'confirm' means 'make stronger ; further establish ; make secure ; corroborate....' The distinction between 'confirm' and 'corroborate' is what confirms serves to confirm the mind ; what corroborates gives weight to the thing.' The definition of 'confirm' in Ne English Dictionary, Vol. II (Oxford), is more or less the same definition, It is, therefore, clear that the word 'confirm' necessarily involves the application of the mind. You cannot make anything stronger, firmer or surer without applying the mind and adding reasons to what has already been said in respect of that particular matter. Dismissal of the appeal in default might indirectly corroborate what has been done by the Assessing Officer inasmuch as the result would be to confirm the assessment but it would not be a confirmation of the assessment as the mind was never applied to the question of the adequacy or inadequacy of the assessment. The word 'confirm' when read along with the succeeding words in Section 9(3)(a) 'reduce, enhance or annul the assessment' leaves no room for doubt as to what the Legislature really intended to convey. If no assessment can be reduced, enhanced or annulled without the application of the mind it would follo that no assessment can also be confirmed without the mind having been brought to bear on the question of the adequacy of the assessment. It would, therefore, appear that what the Legislature had clearly in mind was that the confirmation of the assessment should be achieved by a deliberate and conscious application of the mind by the appellate court and when that was done then only could the appellate court be said to be discharging its duty in the larger public interest.

19. It is true that the insistence by the Legislature on the disposal of every appeal filed before the appellate court on its merits in the larger public interest may lead to some waste of public time inasmuch as the cases in which enhancement is ordinarily made are fe and far between. It may also lead to a certain amount of judicial prevarication inasmuch as the appellate court may confirm the assessment without really going into the merits of the assessment. That however is a matter for the Legislature to consider and not for this Court which has to interpret the la as it finds it and cannot make law.

20. The learned Standing Counsel for the department attempted to press into service the inherent powers of the Court and in particular the powers of the Income-tax Appellate Tribunal under Section 33(4) of the Income-tax Act read with Rule 24 of the Income-tax Tribunal Rules for showing that no court can be forced to proceed to dispose of the appeal on its merits when the appellant absents himself or states in so many words that he does not wish to proceed with the appeal and withdraws it. For this proposition he relied upon the decision of this Court in Shri Bhagwan v. Commissioner of Income-tax [1952] 22 I.T.R. 104, 107, 108 and of the Madras High Court in Ravula Subba Rao v. Commissioner of Income-tax [1955] 27 I.T.R. 164 which laid down that the High Court is not bound to answer a question referred under Section 66 of the Income-tax Act where the applicant absents himself and does not prosecute the petition. These cases are all clearly distinguishable and have no application to the interpretation which is to be placed on the word 'confirm' in Section 9 of the Act. In the case of Shri Bhagwan v. Commissioner of Income-tax [1952] 22 I.T.R. 104 the question was, whether Rule 24 of the Income-tax Appellate Tribunal Rules is ultra vires and could not be framed in the form it had been framed by the Tribunal in exercise of its authority under Section 5A(8) of the Indian Income-tax Act, 1922 A Division Bench of this Court after reproducing Section 33, Sub-Clause (4), of the Income-tax Act which gives the Tribunal the power to pass such orders thereon as it thinks fit, observed:-

It is open to a party who has appealed to give up either some of his points or all his points or even make a statement that he does not wish to press his appeal in which case the Tribunal is bound to dismiss the same. In the circumstances where notice was in fact served on an assessee and he did not choose to appear, the Tribunal could as well assume that he did not wish to proceed further with the appeal and dismiss it for default and it cannot, therefore, be said that the provision in Rule 24 for dismissal of an appeal for default was in any way in conflict with Section 33(4) of the Income-tax Act.

21. This decision, manifestly, proceeded on the interpretation of Section 33(4) of the Act where the powers of the Tribunal are almost plenary and in that state of the la there could be no question of declaring Rule 24 for dismissal in default as ultra vires. There is also no power given to the Tribunal to enhance any assessment and as such a decision given in respect of the powers of the Tribunal cannot be pressed into service for considering the powers of the Appellate Assistant Commissioner or the Judge (Appeals).

22. The Madras High Court in Ravula Subba Rao v. Commissioner of Income-lax [1955]27 I.T.R. 164 pointed out that a very wide power is given to the Tribunal, for the language employed is that 'it may pass such order thereon as it thinks fit', i.e., such orders according to the circumstances of the case, and whether the opportunity of being heard was availed of by the party concerned or was not availed of was immaterial as Sub-section (4) of Section 33 did not make it obligatory on the part of the Tribunal to dispose of the appeal on merits, when the opportunity which was given to the party concerned was not availed of and the appeal was not argued on behalf of such party. In this vie of the matter it was observed:

We are unable to see any conflict between Rule 24 of the rules and Sub-section (4) of Section 33 of the Act. Our attention was drawn in the course of the arguments to the powers of the Appellate Assistant Commissioner in hearing an appeal provided under Section 31 of the Act. These powers bear no analogy, in our opinion, to the powers of the Appellate Tribunal hearing an appeal as the powers of the Appellate Tribunal are not stated in the same detail as in Section 31 but the mode of disposing of the appeal is left to it, giving it a wide discretion to dispose of it as it thinks fit.

23. The latter portion though obiter would appear to support the vie that I have taken, in the present writ petition, as to the interpretation that is to be placed on Section 9 of the Act.

24. In M. M. Ispahani Ltd. v. Commissioner of Excess Profits Tax, West Bengal [1955] 27 I.T.R. 188 the question that arose was as to whether a court of reference is bound to answer the question referred when the applicant has failed to put in an appearance. The interpretation of Section 66(5) of the Income-tax Act was considered. It was held that though the word 'shall' appears in the Income-tax Act, and in spite of the apparent mandatory language of the Sub-section, its true import cannot be to require the High Court to answer the questions referred to it in all circumstances irrespective of whether the parties appear before it or not. Chakravartti, C.J., observed :

To take an extreme case, suppose instead of only the party who had caused the reference to be made being absent both the parties fail to appear, would the Court still be bound to deal with the reference and answer the question referred I cannot imagine that the section purports to impose upon the Court any such obligation. It seems to me that before the duty contemplated by the section to decide the questions of la referred can arise, a hearing of the case must take place, because the section opens with the words: 'The High Court upon the hearing of any such case' etc. Where the party, who has caused the reference to be made and who is in the position of a plaintiff, fails to appear, no hearing of the case can take place and in my vie since the preliminary condition of the Sub-section is not satisfied in such a case, the consequent obligation of deciding the questions of la and delivering a judgment does not also arise.

25. Strong reliance was placed on these observations but, manifestly, the provision of Section 66(5) of the Income-tax Act is not in any way analogous to Section 31 of that Act or Section 9 of the Sales Tax Act. Little or no comfort can, therefore, be derived by the department from the observations made by the learned Chief Justice of the Calcutta High Court. The Madras case in Tamarind Products v. Commissioner of Income-tax [1956] 30 I.T.R. 348 merely followed the aforesaid Calcutta case and therefore requires no discussion. The observations made in respect of the Calcutta case would equally apply to the Madras case.

26. For the reasons given above I would hold that the intention of the Legislature in enacting Section 9 of the Act was to make the appellate court under the Sales Tax Act a watch-dog in the general public interest and particularly on behalf of the public revenues in so far as taxes are gathered through the instrumentality of the Sales Tax Act. The intention that the appeal once filed by the assessee should be disposed of only on its merits is clear from the language used in Section 9 of the Act, which would appear to rule out the possibility of the dismissal of an appeal in default. That being the position, there is no alternative but to hold that Rule 68 of the rules which empowered the appellate court to dismiss an appeal for default is ultra vires the Act. Accordingly the orders of the appellate and revisional authorities dated 26th April, 1958, and 27th April, 1962, in respect of the relevant assessment years 1954-55 and 1955-56 appended to the petition as annexures 7, 8 and 9 are hereby directed to be quashed by the issue of a writ in the nature of cerliorari and the Judge (Appeals) is directed to dispose of the appeals on their merits and in accordance with law.

27. The petition is accordingly allowed with costs.


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