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Satish Chandra Gupta Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAllahabad High Court
Decided On
Case NumberMiscellaneous S.T.R. Nos. 465 and 466 to 468 of 1970
Judge
Reported in[1971]28STC740(All)
AppellantSatish Chandra Gupta
RespondentCommissioner of Sales Tax
Appellant AdvocateK.C. Agarwal, Adv.
Respondent AdvocateStanding Counsel
Excerpt:
- - in other words, clause (1) envisages personal presentation of an appeal as well as a postal presentation of an appeal......in my judgment dated 7th march, 1970, the memoranda of appeals presented by the applicant to the post office on the last day of limitation were not time-barred (2) in view of the facts and circumstances mentioned in my judgment dated 7th march, 1970, the ground that the applicant was misled by the judgment dated 16th july, 1965, in revision no. 4106 of 1959, m/s. motilal babu lal, bindki, fatehpur, was sufficient to condone the delay in filing of appeals under section 5 of the limitation act. 2. the material facts of the case are these : the assessee was assessed to sales tax for four assessment years. it appears that it did not pay the tax within the prescribed time. accordingly a penalty order was passed. the penalty order was passed on 17th september, 1968. a copy of the order was.....
Judgment:

S.N. Dwivedi, J.

1. These four references have been made by the Judge (Revisions) under Section 11(1) of the Sales Tax Act. Two common questions have been referred to the court.

(1) Whether in view of the facts and circumstances discussed in my judgment dated 7th March, 1970, the memoranda of appeals presented by the applicant to the post office on the last day of limitation were not time-barred

(2) In view of the facts and circumstances mentioned in my judgment dated 7th March, 1970, the ground that the applicant was misled by the judgment dated 16th July, 1965, in Revision No. 4106 of 1959, M/s. Motilal Babu Lal, Bindki, Fatehpur, was sufficient to condone the delay in filing of appeals under Section 5 of the Limitation Act.

2. The material facts of the case are these : The assessee was assessed to sales tax for four assessment years. It appears that it did not pay the tax within the prescribed time. Accordingly a penalty order was passed. The penalty order was passed on 17th September, 1968. A copy of the order was served on the assessee on 5th October, 1968. Limitation for filing an appeal from the order is thirty days from the date of receipt of the order. So he could file an appeal on or before 4th November, 1968. On 4th November, 1968, he presented the appeals to the post office. The appeals were sought to be sent by registered post. The appeals were received by the office of the appellate authority on 6th November, 1968, that is to say, two days after the expiry of the prescribed period of limitation. The assessee made an application for condoning delay under Section 5, Limitation Act. The application was rejected. The appeals were accordingly dismissed as time-barred.

3. Four revisions were filed against the appellate order. The Judge (Revisions) dismissed the revisions. He agreed with the view taken by the appellate authority. Hence these references.

4. Section 9 of the Sales Tax Act provides for an appeal against an order of penalty to such authority as may be prescribed. Section 24(1) enables the State Government to make rules to carry out the purposes of the Act. In exercise of that power the State Government has enacted rule 67. Rule 67 consists of four clauses. The first clause is the only material provision. It reads:

The memorandum of appeal shall be presented by the appellant or his lawyer or duly authorised agent to the Assistant Commissioner (Judicial) or may be sent by registered post addressed to the Assistant Commissioner (Judicial).

The marginal note of the rule is 'Appeal how to be presented.'

5. Facts are not disputed. The only question is whether the memoranda of appeals given by the assessee to the post office on 4th November, 1968, which was the last day of limitation were presented to the Assistant Commissioner (Judicial) within the prescribed period of limitation. The answer to the question depends upon the meaning of the word 'sent' in Clause (1) of rule 67. Having regard to several considerations it appears to us that the word 'sent' should be construed as 'presented'. If the word 'sent' means really 'presented' as we think, then there is little doubt that the memoranda of appeals given by the assessee to the post office on 4th November, 1968, were presented to the appellate authority within time.

6. The marginal note to the rule sheds some light on the question of construction. The marginal note reads: ''Appeal how to be presented.' In other words rule 67(1) provides for the mode of presentation of an appeal to the appellate authority. Clause (1) provides for two modes of presentation of an appeal. It is open to the assessee to present the appeal personally to the appellate authority. This is the first mode. The other mode of presentation is to present the appeal to the post office for being forwarded to the appellate authority. The mere fact of duly handing over the memorandum of appeal to the post office and its acceptance by the post office for delivery to the appellate authority would be sufficient presentation to the appellate authority. In other words, Clause (1) envisages personal presentation of an appeal as well as a postal presentation of an appeal. In the instant cases, the assessee adopted the second mode. Considerations of convenience strongly suggest that the word 'sent' should be construed as 'presented'. When the assessee's appeal has been duly accepted by the post office, he has done all that he is required to do by the rule. If the post office delivers the memoranda of appeals to the appellate authority after the expiry of the period of limitation, he is not to blame. Standing Counsel suggests that in such a case the assessee must be given the benefit of Section 5, Limitation Act. So he suggests to us an indirect method of treating his appeals as within time. It appears to us that it is more proper to construe the word 'sent' as 'presented' and treat the appeal as being presented within time to the appellate authority as soon as it is duly accepted by the post office than to adopt a circuitous way of treating the appeal as being filed within time by resort to Section 5, Limitation Act. In Popsing Rice Mill v. Income-tax Commissioner [1949] 17 I.T.R. 420 an application for reference under Section 66(1) of the Income-tax Act was sent by registered post to the Appellate Tribunal within limitation. But it was received by the Appellate Tribunal after the expiry of limitation. The relevant rule prescribed that the application shall be made to the Tribunal by its being presented by the applicant in person or by an agent to the Registrar or the authorised officer or that it can be sent by registered post addressed to the officer concerned. There was a rule which expressly stated that if an application is sent by post, it shall be deemed to be presented to the appropriate authority on the date on which it is received. In the context of the aforesaid provision, the Orissa High Court said :

The question, for determination, is whether 'the date of presentation' or 'the date of posting' will be the essential date for the purpose of limitation. But for Sub-section (2), there shall be no difficulty in pronouncing that one of the modes of application being its transmission by registered post, it shall be deemed to have been 'made' as soon as it is posted.

7. This observation of the Orissa High Court supports the view which we are taking in regard to the construction of the word 'sent' as 'presentation'.

8. As we are answering the first question in favour of the assessee, it is not necessary to answer the second question. Our answer to the first question is that the memoranda of appeals presented by the assessee to the post office on 4th November, 1968, should be deemed to have been presented really to the appellate authority and were accordingly presented within the prescribed period of limitation. The appeals were not time-barred. The Commissioner, Sales Tax, shall pay costs to the assessee which we assess at Rs. 100. There shall be only one set of costs.


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