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Jiwanmal Sons Private Limited Vs. Commissioner of Sales Tax and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 65 of 1970
Judge
Reported in1971MPLJ623; [1971]28STC41(MP)
AppellantJiwanmal Sons Private Limited
RespondentCommissioner of Sales Tax and anr.
Appellant AdvocateR.K. Tankha, Adv.
Respondent AdvocateM.V. Tamaskar, Deputy Government Adv.
DispositionPetition allowed
Cases Referred(Mad.) and Vithaldas v. Income
Excerpt:
.....any time within two years from the date of any order passed by him on his own motion rectify any mistake apparent from the record and shall within a like period rectify any such mistake which has been brought to his notice by any dealer affected by such order :from the language of the section it is clear that where an application for rectification is made, a duty is imposed on the commissioner to deal with that application and decide it. if public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed. 90. 6. it is stated in maxwell on interpretation of statutes (11th edition) at page 364: but when..........of the statute must be looked at...when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. see also bhikrai v. union of india a.i.r. 1962 s.c. 113. 5. again, it is elementary that no one can be allowed to set up his own default in defence to a right asserted by the other party. in 11 halsbury (simonds) 91-92, paragraph 172, it is stated: if.....
Judgment:
ORDER

Shiv Dayal, J.

1. This petition under Article 226 of the Constitution seeks to quash an order of the Commissioner of Sales Tax, M.P., holding that the Commissioner could pass an order under Section 45 of the M.P. General Sales Tax Act (hereinafter called 'the Act') within the time specified therein but no order could be passed after the expiry of that time-limit.

2. The petitioner had applied under Section 45 of the Act for rectification of a mistake on the ground that a certain document (application dated 23rd November, 1962) which had, at the time of the order, been thought to be non-existent, became available later on. The petitioner's application was made within two years from the date of the order. However, the application for rectification remained pending, and was not decided within two years from the date of the order. A question then arose whether the Commissioner had any power to rectify the mistake after the expiry of two years.

3. Section 45 enacts as follows :

(1) The Commissioner may at any time within two years from the date of any order passed by him on his own motion rectify any mistake apparent from the record and shall within a like period rectify any such mistake which has been brought to his notice by any dealer affected by such order : * * * *'

From the language of the section it is clear that where an application for rectification is made, a duty is imposed on the Commissioner to deal with that application and decide it. And, if there is a mistake he must rectify it. However, where the Commissioner acts suo motu, the exercise of the power is discretionary. In either case the period prescribed is two years.

4. We are unhesitatingly of the view that where an application is made within the statutory period but the Commissioner does not decide it one way or the other and allows time to run out, the applicant cannot be deprived of a decision which he can claim as of right under Section 45. It is one of the fundamental principles of law that no one is relieved or gains an advantage from his own deceit; Nemo ex dolo suo proprio relevetur aut auxilium capiat. So also no one can be relieved or gain an advantage from his own negligence or laches. Therefore, the Commissioner could not refuse to pass an appropriate order on the petitioner's application simply because he did not decide it within the prescribed time. The prescription of time for the decision of an application for rectification under Section 45 is a directory, and not a mandatory provision. It was beyond the control of the petitioner to make the Commissioner decide his application within the prescribed time. In State of U.P. v. Manbodhan Lal Shrivastava [1958] S.C.R. 533, their Lordships of the Supreme Court quoted with approval a passage from M.S. Railway Company v. Normandin [1917] A.C. 170, where it is laid down as follows: .no general rule can be laid down, and that in every case the object of the statute must be looked at...When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done.

See also Bhikrai v. Union of India A.I.R. 1962 S.C. 113.

5. Again, it is elementary that no one can be allowed to set up his own default in defence to a right asserted by the other party. In 11 Halsbury (Simonds) 91-92, paragraph 172, it is stated:

If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will lie to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed.

In Rex v. Hanley [1912] 3 K.B. 518 (531), it was said :

A mandamus will lie to compel the performance of a public duty by a public officer although the time prescribed by statute for the performance of it has passed.

See also All India Groundnut Syndicate Ltd. v. Commissioner of Income-tax [1954] 25 I.T.R. 90.

6. It is stated in Maxwell on Interpretation of Statutes (11th edition) at page 364: .But when a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain time, or under other specified conditions, such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.

See also 82 Corpus Juris Secundum 876 where the following statement appears :

Where a statute directs the doing of a thing within a certain time without any negative words restraining the doing of it afterwards, generally the provision as to time is directory and not a limitation of authority, and, in such case, where no injury appears to have resulted, the fact that the act was performed after the time limited will not render it invalid.

In Section 45 of the Act there are no negative words such as 'no order shall be passed after the expiry of two years'. Therefore, the direction that the Commissioner may, within two years, rectify the mistake is a directory provision. When a party makes an application it is the duty of the Commissioner to decide it, provided it was made within the statutory period. If the time of two years was allowed by the Commissioner to run out, he is not relieved of his duty to decide it. This was also the view taken in N.V.S. Kadirvel v. State of Madras [1962] 46 I.T.R. 251 (Mad.) and Vithaldas v. Income-tax Officer, Kanpur [1969] 71 I.T.R. 204 (All.).

7. The petition is allowed. The impugned order dated 29th October, 1969, passed by the Commissioner of Sales Tax is quashed. The case shall go back to the Commissioner for deciding the petitioner's application under Section 45 of the M.P. General Sales Tax Act. Parties are left to bear their own costs. The outstanding security amount shall be refunded to the petitioner.


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