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Shahzad Rai Hira Lal Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberApplication in Civil Misc. Case No. 317 of 1951
Judge
Reported in[1960]11STC689(All)
AppellantShahzad Rai Hira Lal
RespondentCommissioner of Sales Tax
Appellant AdvocateB.L. Gupta, Adv.
Respondent AdvocateGopal Behari, Adv.
DispositionApplication dismissed
Excerpt:
- - sales tax act, the high court could require the revising authority to state a case if the high court was not satisfied that are fusal to state the case, in the opinion of the court, by the revising authority under section 11(2) of the u......section 11 of the u.p. sales tax act, 1948, the applicant prays that this court should direct the revising authority under the u.p. sales tax act to state a case and refer it to the high court. the application relates to sales tax assessment proceedings relating to the year 194849. under section 11, as it stood at that time, after the revising authority had dismissed the revision, the applicant could require the revising authority to refer any question of law arising out of the revisional order to the high court within 60 days from the passing of that order. in the present case, it is admitted by the applicant himself that no application was filed by the applicant within 60 days requiring the revising authority to refer any question of law to the high court. the application, that was.....
Judgment:

V. Bhargava, J.

1. By this application under Section 11 of the U.P. Sales Tax Act, 1948, the applicant prays that this Court should direct the revising authority under the U.P. Sales Tax Act to state a case and refer it to the High Court. The application relates to sales tax assessment proceedings relating to the year 194849. Under Section 11, as it stood at that time, after the revising authority had dismissed the revision, the applicant could require the revising authority to refer any question of law arising out of the revisional order to the High Court within 60 days from the passing of that order. In the present case, it is admitted by the applicant himself that no application was filed by the applicant within 60 days requiring the revising authority to refer any question of law to the High Court. The application, that was made, was presented more than 60 days after the revisional order of the revising authority. The revising authority, in dealing with the application, held that the application was time barred and not entertain able and had to be dismissed. The authority further pro0ceeded to consider the merits of the application and held that there was no ground for making a reference to this Court. After expressing these opinions, the revising authority dismissed the application. Thereupon, within the further period permissible for moving this Court, the applicant presented this application under Sub-section (3) of Section 11 of the U.P. Sales Tax Act as it then stood. Under Sub-section (3) of Section 11of the U.P. Sales Tax Act, the High Court could require the revising authority to state a case if the High Court was not satisfied that are fusal to state the case, in the opinion of the Court, by the revising authority under Section 11(2) of the U.P. Sales Tax Act was justified. It is to be noticed that the High Court's power to call for a reference and a statement of the case is limited to those cases where the revising authority refuses to state the case under Section 11(2) of the U.P. Sales Tax Act. In the present case, the reason given in the second part of the order of the revising authority under Sub-section (1) of Section 11 of the Act, no doubt, deals with the merits of the question whether the revising authority should or should not refuse to state a case but the first part of that order shows that the revising authority held that the application itself was incompetent' as being time barred. The result of the view that the application was time barred was that before the revising authority there was no competent application requiring that authority to state a case and refer it to the High Court. There being no competent application presented within time, the revising authority was not at all competent to consider the question whether it should accept or refuse the prayer made in the application. When the revising authority had no competence even to consider that, prayer, no occasion could arise for it to refuse the prayer made in the application. The dismissal of the application on the ground. of limitation did not, therefore, amount to a refusal of the prayer made in the application. A question of refusing a prayer can only arise where the authority, considering that question, is competent to accept that prayer. If acceptance is beyond the jurisdiction or competence of the authority, no occasion can arise for that authority to pass any order of refusal. The order, which the authority had to pass, was one of rejection of the application which amounted to saying that the revising authority was not going to consider the prayer at all and it was only after the consideration of the prayer that an occasion for refusal or acceptance of the prayer could arise. In these circumstances, we are of the opinion that, in this case, the application under Sub-section (3)of Section 11 of the U.P. Sales Tax Act before this Court is also in competent and not maintainable.

2. The application is dismissed with costs.


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