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Commissioner of Sales Tax Vs. Dharamdas Naresh Chand - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberS.T.R. No. 863 of 1977
Judge
Reported in[1980]45STC289(All)
AppellantCommissioner of Sales Tax
RespondentDharamdas Naresh Chand
Advocates:Standing Counsel
DispositionPetition dismissed
Excerpt:
- - the revision failed and, hence, this reference in which the following question of law has been referred: in those provisions, there is express indication that the limitation would be counted from the date of the service of the order complained of......the u.p. sales tax act, started from the date of service of the assessment order and not from the date of the assessment order?2. in view of section 20(6-a) of u.p. ordinance no. 27 of 1978, this reference is being treated as a revision.3. the point in controversy, however, remains the same and, that is, as indicated by the question referred, as to whether the limitation for making an application under section 22 should be reckoned from the date of the order or from the date when it is communicated to the assessee.section 22(1), in the relevant year, reads as follows:the assessing, appellate, revising or additional revising authority may, at any time within three years from the date of any order passed by it, rectify any mistake apparent on the record.4. the language of section 22 is.....
Judgment:

C.S.P. Singh, J.

1. The assessee dealt in ready-made garments and iron netting. During the assessment year 1967-68, its turnover was taxed at the rate of six per cent. The assessment order was passed on 27th September, 1968. A copy of this order as required by Rule 45 was received by the assessee on 2nd April, 1969. The assessee applied on 4th March, 1972, for rectification of assessment order on the ground that the rate of tax on the turnover of iron netting should have been three per cent, and not six per cent. The Sales Tax Officer counting limitation from 27th September, 1968, the date when the order was passed, rejected the application as being time-barred. An appeal was filed by the assessee, and his contention was that the limitation should be counted not from the date when the order was passed by the assessing authority but from the date it was served on him. This contention was accepted by the appellate authority, who remanded the case to the Sales Tax Officer. The Commissioner of Sales Tax thereupon filed a revision before the revising authority. The revision failed and, hence, this reference in which the following question of law has been referred:

Whether, on the facts and in the circumstances of the case, the Additional Revising Authority, Meerut, was legally justified in holding that the limitation of three years for rectification of mistake as provided under Section 22 of the U.P. Sales Tax Act, started from the date of service of the assessment order and not from the date of the assessment order?

2. In view of Section 20(6-A) of U.P. Ordinance No. 27 of 1978, this reference is being treated as a revision.

3. The point in controversy, however, remains the same and, that is, as indicated by the question referred, as to whether the limitation for making an application under Section 22 should be reckoned from the date of the order or from the date when it is communicated to the assessee.

Section 22(1), in the relevant year, reads as follows:

The assessing, appellate, revising or additional revising authority may, at any time within three years from the date of any order passed by it, rectify any mistake apparent on the record.

4. The language of Section 22 is very deceptive, as it stands in sharp contrast to the language used in Sections 9 and 10, when prescribing the period of limitation for filing an appeal or a revision. In those provisions, there is express indication that the limitation would be counted from the date of the service of the order complained of. This has given an impetus to Sri V.D. Singh to urge that limitation for moving an application under Section 22 should be reckoned from the date of the assessment order. It is not possible to accept this contention in view of the pronouncement of the Supreme Court in the case of Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer A.I.R 1961 S.C. 1500. In that case, the question arose as to the point of time when the limitation would start running for making an application under Section 18 of the Land Acquisition Act in respect of an award given by the Land Acquisition Officer. There was no indication in the Act that the award should be served on the landholder. Literally read, the provisions of Section 18 indicated that the limitation should be counted from the date of the award. It was held that as the award adversely affected the rights of the owner of the property, the limitation should be counted from the date when the award was either communicated to the party or when it became known to him either actually or constructively. While taking this view, their Lordships occasion to consider the provisions of Section 33-A of the Income-tax Act, 1922, which prescribes the period of limitation for moving an application for revision. Section 33-A(2) laid down the limitation of one year from the date of the order sought to be revised. The Bombay High Court and the Madras High Court had taken the view that even though Section 33-A(2) did not expressly state as was done in Section 33-A(l) that the limitation would be reckoned from the date of the communication of the order, it was proper to interpret the provision as fixing the period of limitation as one year from the date when the party aggrieved actually knew or had an opportunity of knowing the order. Their Lordships of the Supreme Court expressly approved the view taken by the Bombay High Court and the Madras High Court. The same situation obtains here. Although Sections 9 and 10 prescribe a period of limitation which is to run from the date of the communication of the order, and Section 22 does not do so, but as it confers a remedy on an assessee and grants a three years' period of limitation, following the view of the Bombay High Court and the Madras High Court, which met with the approval of the Supreme Court in the Raja Harish Chandra's case A.I.R. 1961 S.C. 1500, it must be held that the limitation for filing an application under Section 22 for an assessee begins to run from a date when the order is communicated to him or from the date when he had opportunity of knowing the contents of the order fully.

5. Sri V.D. Singh, the standing counsel, drew my attention to the two decisions of this Court in cases arising under Section 33-A(2) of the Income-tax Act, 1922. The provisions regarding limitation contained therein are similar to the present provision in which the view has been taken that the limitation for filing a revision would start running from the date when the order was passed. These decisions are reported in Haji Ghulam Hussain and Sons v. Commissioner, Income-tax, U.P. [1957] 31 I.T.R. 231, and Ramgopal Ram Prasad v. Income-tax Officer, Kanpur [1962] 46 I.T.R. 529.

6. In view of the pronouncement of the Supreme Court referred to earlier, it is not possible to follow these decisions.

7. The revision fails and is dismissed. There shall be no order as to costs.


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