1. This is an application under Section 24, Sub-section (2), Clause (b) of the Orissa Sales Tax Act, 1947, asking us to direct the Commissioner, Northern Division, Sambalpur, to state a case.
2. The petitioners are a Limited Company, incorporated under the Indian Companies Act. 1913, having their Head Office at Calcutta.The Firm carries on business in Bamboos and Sabaigrass and supplies the above articles to Orient Paper Mills, Brajarajnagar, Titagar Paper Mills and other Bengal Paper Mills. The Firm, inspite of carrying on business for a long time, did not take steps to get itself registered under Section 9 of Orissa Sales Tax Act. Thereupon, the Sales Tax Officer issued notice under Section 12, clause (5) of the Act in response to which the Firm denied liability to pay the tax on the ground that the sales had taken place outside the State of Orissa and, as such, no tax was payable in Orissa. The Sales Tax Officer, Sambalpur, by his order dated 16-12-49, assessed the petitioners to pay a tax of Rs. 3215/10/-.
3. The Sales Tax Officer's order of assessment solely relied upon the letter of the Collector of Commercial Taxes, Orissa, No. 3264 C.T./328 C. T. of 48, dated the 22nd September, 1948. There being a reference to the letter of the Collector of Commercial Taxes in the body of the order itself, we allowed the production of the said letter and, in order to understand the contents of the said letter, we allowed also the production of the letter written to the Collector by the Asst. Manager of the petitioners, the letter being dated 20th September, 1948. The letter of the Collector runs thus;
'Please refer to your letter No. A/364 dated 20-9-48. The export of bamboos by you from. Sambalpur and other districts of Orissa to the Titaghur Paper Mills Co., and the Bengal Paper Mills Co., in Bengal constitutes a 'sale' in Orissa and as such attracts liability to Sales Tax. The Orissa Sales Tax Act does not exempt such exports from payment of sales tax. The fact that you have been registered in West Bengal does not affect the question in any way.'
4. Against the order of the assessment, the petitioners went up in appeal to the Asst. Collector, and in revision to the Collector and the Commissioner. The Commissioner, by his order dated March 19th, 1951, upheld the assessment on reasons different from that of the Sales Tax Officer. He found:
'The goods were collected in Orissa and were despatched from Orissa. Normally, therefore, it is reasonable to presume that the sales were completed in Orissa. No doubt, there may be different contracts belying this presumption; but as no evidence have been produced by the party, this presumption of station of despatch will prevail. It is, therefore, not at all unreasonable that the Sales Tax Officer has treated the gross turnover as assessable.'
5. The petitioners' petition to the Commissioner for stating a case and referring the matter to the High Court having been refused, the present petition has been filed. A preliminary objection has been taken by the learned advocate, appearing on behalf of the opposite party, that the present petition is barred by time. The order, refusing to make a reference, bears the date '30th July, 1951', and the present petition has been filed on 28th September 1951. Under the provisions of Section 24 (2) of the Orissa Sales Tax Act, the petition to the High Court has got to be filed within 30 days of such refusal by the Commissioner. Subsection (2) runs thus:
'If, for reasons to be recorded in writing, the Revenue Commissioner refused to make such reference, the applicant may, within thirty days of such refusal, either -
(a) withdraw his application (and if he does so, the fee paid shall be refunded), or
(b) apply to the High Court against such refusal,'
6. It is contended by the petitioners that the period of limitation should commence not from the signing of the order but from the communication of such order to the petitioners, which remains uncontroverted, to the effect that the refusal was communicated by the office of the Commissioner, Sambalpur, in his Office letter No. 5750/Grl, dated 9th August, 1951, which was received in the Office of the petitioners on 13th August 1951. To us, it appears that the term 'refusal' implies within itself 'communicated refusal'. If the Commissioner signs the order and keeps it for himself without communicating it to the person against whom refusal is meant, it cannot be taken to be a refusal as contemplated under Section 24. We, therefore, think that the limitation will start from the date of communication of the order of refusal and not from the date of signing of it. We are supported in our view by a decision of the Madras High Court, reported in 'Muthiah Chettiar v. Comrnr. of Income Tax, Madras' : 19ITR402(Mad) . The Head Note runs as follows: 'If a person is given a right to resort to a remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had knowledge of the order.' Chief Justice Rajamannar, in his judgment, observes:
'The only question on the merits which falls for decision is whether the one year has to be computed from the date when the order was signed by the Income-tax Officer, or the date when it was communicated to the petitioner, or the date, if there be any, on which the petitioner had the opportunity of coming to know of the order. The learned advocate for the petitioner relied on a number of decisions of this Court of which it is sufficient to refer to two, namely, -- 'Secretary of State v. Gopi-Setty Narayansami', 34 Mad 151 and -- 'Swaminathan v. Lakshmanan Chettiar', 53 Mad 491, which support his contention that the date of the order does not mean the date when the Officer passed the order but the date when such order was either communicated to the party or the date when it was pronounced or published in such a manner that the party must be deemed to have had a notice of it on the date of such pronouncement or publication.'
7. As it appears from paragraph 3 of the affidavit, filed by the petitioners, that, in fact, an official letter was written to the advocate of the petitioners, it seems to be the practice of that Board of communicating with the persons aggrieved by official letters.
8. According to us, therefore, the pertinent date for the purpose of limitation is 13th August, that is, the date of communication of the order, and not 30th of July, the date on which the order was signed.
9. Under the provisions of Section 29 of the Indian Limitation Act, the provisions of Section 12 of the Act which prescribes computation of period for obtaining copies of order or judgment, shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Therebeing no provision in the Orissa Sales Tax Act. expressly excluding the provisions of Section 12 of the Indian Limitation Act, the petitioners, in the case, are entitled to the advantage of computation that they had taken for the purpose of obtaining the copies. The petitioners have filed an affidavit, as observed above, the contents of which have not been disputed before us. The petitioners had filed the application, for copy on 3-8-51. The Office of the Board of Revenue, Sambalpur, in their letter dated 14-8-51, called for supply of stamps and folios within 7 days. The letter was received at the Office of the petitioners' advocate on 17-8-51, The requisite folios and court fees were sent on 20-8-51. Then again the Board of Revenue, in their letter dated 30-8-51, intimated that the copies were ready and asked to take delivery of them within 7 days, the letter having been received by the petitioners' advocate on 4-9-51. These facts transpire from paragraphs 4, 6 and 7 of the affidavit. On the above facts, therefore they are entitled to 22 days as the time requisite for obtaining copies, i.e., from 14-8-51, when the limitation commenced, upto 4-9-51, and there being no latches on their part during these days. The present petition having been filed on 28-9-51, they are within time.
10. A point was taken that they were not entitled to the time the letters from Sambalpur took to reach them. But our attention has been drawn to Rule 61 (2) of the Rules under the Orissa Sales Tax Act, 1947, which runs as follows:
'On receipt of the application, the dealer will be informed of the court fee stamps that will be required under the provisions of Sub-rule (3) lor the supply of copy. After the necessary court-fee has been paid by the dealer, a certified copy of the order will be prepared! and granted to him.'
This shows the dealer is entitled to be informed of the requisite court-fee and stamp which means, in the absence of any other provisions, he is to be informed by the usual mode of communication, that is, by postal letters. The learned counsel, appearing on behalf of the opposite party, has produced before us a true copy of the extract from letter No. 3626 dated 15-7-52, from the Deputy Secretary to Board of Revenue, Sambalpur, to the Collector of Commercial Taxes, Orissa, Cuttack, Paragraph 3 runs as follows: 'Under Rule 61 of the Orissa Sales Tax Rules, on receipt of an application for a copy, a notice assessing the requisite folios and court-fee stamps is pasted on the Notice Board. On receipt of stamps from the party, copies are prepared and when these are ready another notice asking the party to take delivery of the copies in person is pasted on the Notice Board. A party may take delivery through an authorised agent.' In the extract there is nothing to indicate clearly that that was the practice prevailing at time when the petitioners of this case had applied for the copies. On the contrary, the fact that the authorities had written a letter to the petitioners to supply the folios &c.;, as it appears from the affidavit, makes us more inclined to find that the Department used to inform the parties applying for copies by postal communications for depositing folios, and this is in accord with Rule 61 (2).
11. Now coming to the merits of the case the main contention of the learned advocate appearing for the petitioners, is that theassessment is illegal inasmuch as the assessment is based upon the legal position that mere contract for sale in the State of Orissa is sufficient to make it taxable under the provisions of the Orissa Sales Tax Act, as a contract for sale is denied to be a sale under the second proviso to Section 2 (g). The whole basis of assessment is the order of the Sales Tax Officer, Sambalpur, dated 16-12-49, and the Collector's letter dated 22nd September, 1948. From the letter of the Collector, as we have quoted above, we find that, according to him, mere export of Bamboos is sufficient to constitute a sale in Orissa. There seems to be enough force in the contention that a mere contract for sale cannot constitute a sale. It being executory in character, pure and simple, no property or ownership passes under it. The sale, on the other hand, is an executed contract where complete ownership passes. The second proviso in Section 2 (g) of the Orissa Sales Tax Act seems to be ultra vires. Entry No. 48 of List II of the Seventh Schedule of the Government of India Act 1935, running as 'Taxes on the sale of goods and on advertisements' in a Provincial Subject. The Provincial Legislature is competent to legislate on the subject. But the 'sale', under the Orissa Sales Tax Act, cannot be made wider than what it meant under the Government of India Act. We are to take it that the British Parliament used the term 'sale' in the sense in which it was used in India, i.e., a completed transaction involving a transfer of interest. A mere contract for sale is not a completed transaction. If it meant anything other than or wider than the meaning of the word 'sale', appearing in the Government of India Act, to that extent it must be said to be ultra vires. Mere contract for sale, therefore, within the State of Orissa cannot be taxable under the Orissa Sales Tax Act. We are supported in our view by a Bench decision of the Allahabad High Court reported in -- 'Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur' 1952 All LJ 332. Sapru J. observes:
'The point which I am stressing is that there is, as is evident from Sub-sections (3) and (4) of Section 4 of the Indian Sale of Goods Act, a distinction between an agreement to sell and a sale and what is authorised by the Government of India Act is taxation of a sale of goods and not agreement to sell which has not materialised into a sale. An agreement to sell is, as I have said before, an executory contract pure and simple. No property under it passes. A sale, on the other hand, is an executed contract, i.e., it is a contract plus a conveyance. The distinction between an agreement to sell and a sale has been brought out by Mr. Benjamin in his well-known book on Sale (Eighth Edn, p. 1). In Mr. Benjamin's view:
'In order to constitute a sale there must be (1) An agreement to sell, by which alone property does not pass; and (2) an actual sale, by which the property passes' I would also quote in this connexion the observations of Parke, J. in -- 'Dixon v. Yates', (1833) 5B & Ad. 313 at p. 340:
'Where there is a sale of goods generally no property in them passes till delivery because until then the very goods sold are 'not ascertained'. 'But where by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they wouldbe after a delivery of goods in pursuance of a general contract. The very 'application' of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee'.
X X X X X' at p. 336: 'I am satisfied that Explanation III of Sub-section (b) of Section of the Act which seeks to put a meaning not contemplated by the British Parliament on the word 'sale' with reference to forward contracts is invalid.'
12. The learned counsel, appearing on behalf of the opposite party, has drawn our attention to the finding of the Commissioner to contend that the decision of the Commissioner is based upon a finding of fact that the sales-had taken place within the State of Orissa. The finding of the Commissioner has been quoted above. It is clear that before the Sales Tax Officer there was absolutely no material from which it could be concluded that the sales were completed within the State of Orissa. As such, the basis of assessment by him was the letter of the Collector on the theory that mere export is sufficient to make a transaction taxable. The finding of the Commissioner 'that the goods were collected in Orissa and were despatched from Orissa. Normally therefore it is reasonable to presume that the sales were completed in Orissa, 'is too long a presumption, there being no material that the sales were actually completed in Orissa. We would, therefore, require the Commissioner, Northern Division, Sambalpur, to state a case and refer it to this Court on the following point:
'Whether in the circumstances of the case the assessment is legal being based on the position that mere contract for sale within the State of Orissa and the export of goods from Orissa is sufficient for taxation under the Orissa Sales Tax Act, 1947.'
Jagannadha Das, C.J.
13. I agree.