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Rajab Ali Farishta Vs. Commissioner of Sales Tax - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petition No. 102 of 1962
Judge
Reported in[1963]14STC574(MP)
AppellantRajab Ali Farishta
RespondentCommissioner of Sales Tax
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateR.J. Bhave, Government Adv.
DispositionSuit allowed
Cases ReferredLtd. v. Union of India I.L.R.
Excerpt:
.....appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 7. it is well established, and is also not disputed, that when questions of law going to the root of a case and capable of being decided without evidence arise, the authority dealing with the matter has to decide those questions first......with expedition mainly because the counsel for the petitioner pressed for such a direction and the government advocate appearing for the commissioner also agreed that that direction may be issued.10. the petition succeeds and is allowed to the extent indicated below. the sales tax commissioner is directed to decide with expedition the preliminary objections raised and argued before him on 1st march, 1962. in the circumstances of the case, we make no order about costs and direct that the security amount shall be refunded.
Judgment:
ORDER

1. This petition under Article 226 of the Constitution is directed against two notices dated 6th November, 1961, which the Commissioner of Sales Tax, Madhya Pradesh, purported to issue under Section 39(2) of the Madhya Pradesh General Sales Tax Act, 1958, and the proceedings taken in pursuance of those notices against the petitioner.

2. Although the petitioner has asked for several reliefs, when the case came up for hearing before us, his counsel Shri Dharmadhikari only pressed for a direction requiring the Commissioner to decide the preliminary objections which were argued on 1st March, 1962. For the relief just mentioned, it is necessary to state a few facts. The petitioner is a partner of the firm Rajab Ali Wali Mohammad. That firm is a registered dealer and carries on at Raipur the business of importing and selling motor tyres and tubes, kerosene oil, bicycles, parts and accessories. The Regional Assistant Commissioner of Sales Tax, Raipur, assessed the firm to tax in respect of sales made in the year 1952-53 on 23rd July, 1958, and in respect of those made in the year 1953-54 on 25th August, 1958. In regard to the second year, a penalty was imposed under Section 10(3) of the Central Provinces and Berar Sales Tax Act, 1947, with the approval of the Commissioner.

3. On 6th November, 1961, the Commissioner passed an order directing initiation of revision proceedings under Section 39(2) of the 1958 Act against the firm because the two assessments, which did not include the sales made by the firm in the name of Ali Mohammad Sadruddin, were prejudicial to the interests of the revenue. In response to the two notices issued in pursuance of that order, the petitioner submitted in writing his preliminary objections.

4. By a communication dated 31st January, 1962, the petitioner was intimated that his preliminary objections would be heard on 1st March, 1962, that thereafter, if considered necessary, the revision would also be heard on merits and that, therefore, he should bring with him all account books for the Diwali year 1952-53 and other necessary evidence.

5. In due course, the case came up for hearing before the Commissioner on 1st March, 1962, when the counsel for the petitioner pressed the following preliminary objections :

(a) The orders of assessments for the years 1952-53 and 1953-54 having been passed by the assessing authority under the C.P. and Berar Sales tax Act, 1947, hereinafter called the repealed Act, those were not the proceedings under the Act and as such Section 39 (2) was not applicable,

(b) As the 'Us' and the assessments had arisen and concluded under the provisions of the repealed Act and the petitioner's rights also were settled under the repealed Act and the limitation thereof under Section 11-A or 22-B having been expired, those rights could not be affected by initiation of the proceedings under the Act.

(c) As the notices issued and the gist of the orders communicated were uncertain and vague and further as there was no material in the report of the R.A.C. dated 9th October, 1961, to sustain the proceedings under Section 39(2), the notices issued were illegal being in contravention of the mandatory requirements of the Act.

(d) The respondent himself having imposed the penalty in the assessment order dated 25th August, 1958, had become a party to the order and as such he was not competent to revise his own order.

(e) Even assuming but not admitting that the new Act was applicable, the proceedings were barred by time, having been initiated after the expiry of the period of three years from the dates of the assessment orders i.e., 23rd July, 1958, and 25th August, 1958.

(f) According to the notices and the gist of the orders, the cases, if any, appear to be either of under-assessment or of escaped assessment for which special provision had been made either under Section 11-A of the repealed Act or under Section 19 of the Act and the limitation under either of the said provision having expired, no resort could be had to the general powers either under Section 22-B of the repealed Act or Section 39(2) of the Act.

(g) The proceedings having been based on the report of the R.A.C. dated 9th October, 1961, arc without any foundation as the so-called report is merely an explanation for the Civil Suit No. 8-B of 1961 pending before the A.D.J., Raipur, and does not purport to be dealing with the merits of the assessment cases and therefore no. revision is possible on extraneous material when the law requires the revising authority to confine itself to the records of the assessment and examination thereof.

It was also submitted that the issuance of notices of revision, which were based on a complaint about the civil suit filed by the petitioner for damages for loss of account books, was an attempt to influence the petitioner in the conduct of his suit. At the close of arguments, the counsel for the petitioner requested that his preliminary objections be decided. Thereupon, the following order was passed:

This request is request is rejected because it is considered proper that there should be a consolidated decision after hearing full arguments in connection with the notice. Therefore, for the remaining arguments, time is given. The case is fixed for hearing on 21st April, 1962.

Being aggrieved, the petitioner moved this Court for the several reliefs claimed by him in his petition. Since the petitioner now claims only one relief, we reserve our opinion about the other reliefs.

6. In P. N. Films, Ltd. v. Union of India I.L.R. 1955 Bom. 346, a case under Article 226 of the Constitution, in which the question of jurisdiction was decided first as a preliminary point, their Lordships observed :

A preliminary point is one which if answered negatives either the jurisdiction of the Court or negatives any cause of action on the face of the plaint as in the case of issue of limitation and in my opinion in fact if this preliminary point is answered then it would be unnecessary for the Court to go into the facts and other issues arising thereupon.

In the instant case, one of the preliminary objections raised relates to jurisdiction and another to limitation. Implicit in the objection relating to limitation is the question whether the revision proceedings were initiated in disregard of a positive prohibition of law. It is also obvious that the preliminary objections raise questions of law which can be determined without evidence.

7. It is well established, and is also not disputed, that when questions of law going to the root of a case and capable of being decided without evidence arise, the authority dealing with the matter has to decide those questions first. This is based on the principle of preventing injustice of a party being able to force his opponent to go at great lengths into evidence when the simple decision on a point of law might render the investigation of the facts unnecessary. No doubt, the authority dealing with a matter has to consider whether such questions arise. Having so considered the matter and decided to hear arguments on such questions some of which go to the root of the matter and having also heard full arguments on those questions, it was not open to the Commissioner to turn down the request for deciding those questions. We may also mention that the Commissioner has given no reason for adopting that course.

8. The Government Advocate endeavoured to justify the order dated 1st March, 1962, as one made for hearing further arguments on the preliminary objections. In view of what is stated in paragraphs 21 and 22 of the return, it was pointed out to him that his submission was without any basis. The Government Advocate thereupon stated that a direction may be issued to the Commissioner to decide the preliminary objections.

9. It is not that we have not formed our opinion on some of the questions raised in this petition. But we prefer to issue a direction to the Commissioner to decide the preliminary objections with expedition mainly because the counsel for the petitioner pressed for such a direction and the Government Advocate appearing for the Commissioner also agreed that that direction may be issued.

10. The petition succeeds and is allowed to the extent indicated below. The Sales Tax Commissioner is directed to decide with expedition the preliminary objections raised and argued before him on 1st March, 1962. In the circumstances of the case, we make no order about costs and direct that the security amount shall be refunded.


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