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Sheojiram Parmanand Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectLimitation;Sales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 309 of 1962
Judge
Reported in1962MPLJ229; [1963]14STC9(MP)
AppellantSheojiram Parmanand
RespondentCommissioner of Sales Tax
Appellant AdvocateH.M. Thakkar, ;J.M. Thakkar and ;A.L. Halve, Advs.
Respondent AdvocateR.J. Bhave, Government Adv.
Cases ReferredGovindji v. Commissioner of Sales Tax
Excerpt:
.....an order of assessment and/or penalty passed under section 17 or section 18 or section 19 and section 43 shall be in form xviii and shall set forth briefly and clearly the reasons therefor. 9. in our view, the impugned orders are clearly erroneous in law and amount to a refusal by the board to exercise the jurisdiction vested in it by section 44(1) of the act......them.9. in our view, the impugned orders are clearly erroneous in law and amount to a refusal by the board to exercise the jurisdiction vested in it by section 44(1) of the act. these orders cannot, therefore, be sustained.10. we set aside the two orders of the board dated 28th february, 1962, and direct the board to entertain the petitioner's applications dated 27th march, 1961, and to deal with them in accordance with law. in the circumstances of the case, there will be no order about costs.
Judgment:
ORDER

1. This order will govern Miscellaneous Civil Case No. 112 of 1962 also.

2. These two petitions are directed against two separate orders of the Board of Revenue, dated 28th February, 1962, by which the petitioner's applications under Section 44(1) of the Madhya Pradesh General Sales Tax Act, 1958, were dismissed as barred by time, Since there is no provision in that Act similar to Sub-section (3) of Section 66 of the Income-tax Act, 1922, we allowed the petitioner to convert these petitions into petitions under Article 226 of the Constitution upon payment of the requisite court-fees.

3. The material facts may be briefly stated. The Board dealt with two appeals, Nos. 123 of 1959 and 124 of 1959, which the petitioner had filed against assessments of tax on sales made during the periods 22nd October, 1949, to 9th November, 1950, and 10th November, 1950, to 30th October, 1951. In these two appeals, arguments were heard on 28th November, 1960, and the cases were posted for order on 7th December, 1960, when orders were passed in the absence of the petitioner. These orders were not communicated to the petitioner who learnt from another source that his appeals had been decided. He then applied for copies and obtained them on 22nd March, 1961. Thereafter, on 27th March, 1961, he despatched by registered post his applications under Section 44(1) of the Act which the Board received on 27th April, 1961.

4. The Board took the view that the words 'communication by the Tribunal of any order' occurring in Section 44(1) of the Act were not restricted to written communications only and that when the Board fixed a specific date for order and actually passed orders on that date, the orders should be deemed to have been communicated to the petitioner even though he chose to remain absent on the date. The reason given was that if the petitioner were present on that date, of which he had notice in advance, the orders would have been communicated to him. In support of this view, the Board relied upon the following observations in Govindji v. Commissioner of Sales Tax, Madhya Pradesh [1955] 6 S.T.C 183 at p. 190.

There is nothing in the Sales Tax Act to prevent the Board of Revenue or other authorities acting under the Act from giving the assessee sufficient notice of the day on which it would pass its decision to enable him, if he chooses to be present, to hear it; and if that is done, limitation would run from that day if the decision is announced on that date. That is the date of communication though the assessee may not care to listen.

We consider it sufficient to say that these observations were made in regard to the words 'within sixty days from the passing by the Tribunal of any order' occurring in the unamended Section 23(1) of the Central Provinces and Berar Sales Tax Act, 1947, and they are not relevant for construing the meaning of the words 'within sixty days from the date of communication by the Tribunal of any order' occurring in Section 44(1) of the Act. In this connexion, we may also point out that the hardships and difficulties created by the words 'from the passing by the Tribunal of any order' impelled the Legislature to amend the old Act and to prescribe the date of communication of the order as the terminus a quo.

5. The ordinary and natural meaning of the word 'communication' is that which is communicated, transmitted, passed on or sent. As Earl Jowitt stated in the Dictionary of English Law, the word 'communicate' means 'to make some right available to another in fulfilment of a legal duty'. Even apart from that, the words used here require communication of the order itself and not merely a communication of intelligence of that order. Further, in our view, the word 'communication' also implies actual, and not merely imputed or constructive communication, except as provided in Rule 63(4) of the Rules made under the Act. Having regard to all these considerations, we are of opinion that time does not commence to run under Section 44(1) of the Act before a copy of the order passed in appeal is communicated to the appellant. This view finds ample support from the various provisions of the Act and the rules made thereunder.

6. Sections 38(4), 39(3) and 44(1) and (2) of the Act read:

38. (4) Every first or second appeal shall be filed within thirty days from the date of communication of the order against which the appeal is to be filed.

39. (3) Any dealer objecting to an order passed by the Commissioner under Sub-section (2) may appeal to the Tribunal within sixty days of the date on which the order is communicated to him.

44. (1) Within sixty days from the date of communication by the Tribunal of any order under Sub-section (2) of Section 38 or Sub-section (3) of Section 39 affecting the liability of any dealer to pay tax, such dealer or the Commissioner may, by application in writing accompanied where the application is made by a dealer by a fee of one hundred rupees, require the Tribunal to refer to the High Court any question of law arising out of such order, and where the Tribunal decides to make a reference to the High Court, it shall draw up a statement of the case and refer it accordingly.

(2) If, for reasons to be recorded in writing, the Tribunal refuses to make a reference, the applicant may within thirty days from the date of communication of such refusal-

(a) withdraw his application (and if he does so, the fee paid shall be refunded), or

(b) apply to the High Court to require the Tribunal to make a reference.

Rules 36, 61 and 63 (4) and (5) provide as follows:

Rule 36. An order of assessment and/or penalty passed under Section 17 or Section 18 or Section 19 and Section 43 shall be in form XVIII and shall set forth briefly and clearly the reasons therefor. An authenticated copy of the order shall be served on the dealer.

Rule 61. A copy of the order passed in appeal or revision shall be supplied free of cost to the appellant or applicant or the person affected thereby and another copy shall be sent to the officer whose order forms the subject-matter of the appeal or revision proceedings.

Rule 63(4). Orders under the Act or any rules made thereunder may be served by any of the following methods:-

(i) by delivering or tendering to the addressee or his agent by hand of a copy of an order; or

(ii) by post.

(5) When service is made by post, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post with acknowledgement due the notice or summons or orders and, unless the contrary is proved, the service shall be deemed to have been effected at the time at which the notice or summons or order would be delivered in the ordinary course of post.

It is implicit in these provisions that a copy of every original or appellate order is required to be delivered or tendered or sent by post to the assessee. This is considered necessary because, under the provisions of the Act and the Rules made thereunder, there is no obligation to fix a date for order with previous notice to the parties. The fact that, in a particular case, the Board fixed it for order on a particular date which the assessee knew in advance is neither here nor there, because that is not the scheme of the Act and the Rules made thereunder and it can have no bearing on the question of commencement of limitation.

7. It is argued for the Revenue that Rule 61 does not cast an obligation to supply a copy on the passing of the order and that all that it means is that, whenever the appellant or applicant chooses to apply for a copy, it must be supplied to him free of cost. That is not how we read that rule which, in our opinion, casts on the appellate or revi-sional authority an obligation to supply a copy to the appellant or applicant and to send 'another copy' to the officer whose order was the subject-matter of appeal or revision. In Abdul Aziz Ansari v. State of Bombay [1958] 9 S.T.C. 135, the Bombay High Court considered an identical rule framed under the Bombay Sales Tax Act, 1953, and observed:

It appears to us that this rule does cast an obligation when an order is passed in appeal or revision to supply a copy to both the parties; and since the decision is not given in the presence of parties, there being a requirement that the order shall be communicated to the parties, time for presenting an application for a reference to the High Court does not begin to run until the copy is supplied to the party aggrieved.

8. There are a number of cases in which a similar question was considered but, in all those cases, the provisions of the statute were similar to the one considered in the case of Govindji v. Commissioner of Sales Tax, Madhya Pradesh [1955] 6 S.T.C. 183. That being so, we do not consider it necessary to examine them.

9. In our view, the impugned orders are clearly erroneous in law and amount to a refusal by the Board to exercise the jurisdiction vested in it by Section 44(1) of the Act. These orders cannot, therefore, be sustained.

10. We set aside the two orders of the Board dated 28th February, 1962, and direct the Board to entertain the petitioner's applications dated 27th March, 1961, and to deal with them in accordance with law. In the circumstances of the case, there will be no order about costs.


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