Skip to content


Lucky Bidi Co. Vs. Secretary of State of Orissa (In Charge of Commercial Taxes) - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberS.C.A. No. 63 of 1960
Judge
Reported inAIR1962Ori90
ActsConstitution of India - Article 133(1)
AppellantLucky Bidi Co.
RespondentSecretary of State of Orissa (In Charge of Commercial Taxes)
Appellant AdvocateL.K. Dasgupta and ;G.N. Sengupta, Advs.
Respondent AdvocateG.K. Misra, Adv. and ;Government Adv.
DispositionPetition dismissed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the.....barman, j. 1. this is plaintiff-appellant lucky bidi company's application under article 133 of the constitution of india for leave to appeal to the supreme court against the decision of a division bench of this court in second appeal no. iii of 1957,--setting aside the reversing decision of the learned district judge, sambalpur and upholding the decision of the learned subordinate judge sambalpur, whereby he dismissed the suit of the plaintiff lucky bidi company (petitioner herein). the prayers in this suit, which was dismissed were as fallows:- '(a) decree for declaration that the assessment orders and notices of demand for payment of taxes levied on messrs. gohil bidi company for the quarters ending 31-12-48 and 31-3-49 when the plaintiff lucky bidi company was not even formed and.....
Judgment:

Barman, J.

1. This is plaintiff-appellant Lucky Bidi Company's application under Article 133 of the Constitution of India for leave to appeal to the Supreme Court against the decision of a Division Bench of this Court in second appeal No. III of 1957,--setting aside the reversing decision of the learned District Judge, Sambalpur and upholding the decision of the learned Subordinate Judge Sambalpur, whereby he dismissed the suit of the plaintiff Lucky Bidi Company (petitioner herein). The prayers in this suit, which was dismissed were as fallows:-

'(a) Decree for declaration that the assessment orders and notices of demand for payment of taxes levied on Messrs. Gohil Bidi Company for the quarters ending 31-12-48 and 31-3-49 when the plaintiff Lucky Bidi Company was not even formed and which are now sought to be realised from the plaintiff in Revenue case No. 4/5, 97 of 1952-53 of the Court of the Additional Tahasildar, Sambalpur, are altogether without jurisdiction, unwarranted by law and not binding on it (plaintiff Lucky Bidi Company):

(b) For an order of permanent injunction restraining the defendant (State of Orissa) from enforcing the said orders and demand notices againstthe plaintiff Company:

(c) all the costs of the suit and future interest till realisation;

(d) any other legal, proper and equitable reliefs.' The suit was valued at Rs. 4253/- for declaration and permanent injunction.

2. The ground on which the plaintiff-appellant Lucky Bidi Company now prays for leave to appeal to the Supreme Court,-- as stated in paragraph 16 of the petition for leave,--that the decree of the Hon'ble High Court will' directly or indirectly affect the plaintiff-appellant Lucky Bidi Company in respect of the assessment of sales tax made on the Gohil Bidi Factory amounting, to Rs. 20,578/-, stated therein, as quoted below:

Qr.ending 31.12.47_Rs.5000/-'' 30. 6.49_'3.775/-Includingpenaltv'' 33. 9.49-'3,775/-'' 31.12.49-'3,775/-Forqrs. in suit.........-'4253/-Rs.20.578/-only.'

Thus the plaintiff-appellant seeks to bring the case under Article 133(1)(b) of the Constitution. The point, urged by Mr. L.K. Dasgupta, learned Counsel for the plaintiff-appellant, in support of his prayer for leave is in substance this: In view of the High Court's conclusion in the second appeal that the Lucky Bidi Company and the Gohil Bidi Company are one and the same, it directly or indirectly affects the assessments both prior to and subsequent to the quarters in suit which are in respect of two quarters ending 31-12-48 and 31-3-49; if, therefore, the High Court's finding, as to the identity of the Lucky Bidi Company and the Gohil Bidi Company,--is set aside by the Supreme Court finding that they are not one and the same, then such a finding would directly or indirectly affect the position of the plaintiff Lucky Bidi Company in respect of assessment of sales tax on Gohil Bidi Company both for prior and subsequent years.

3. This argument is repelled by Mr. G.K. Misra,--learned counsel for the defendant-respondent--submitting that in the absence of particulars, namely, quarter assessed, quantum of tax, date of assessment, demand notice regarding the particulars, assessment and date of suit, it is not open to the plaintiff-appellant to argue that the decree of the High Court will any way directly or indirectly affect the plaintiff-appellant as alleged.

The learned Counsel further submits that when, indeed all these assessments and demands,--referred to in paragraph 16 of the leave petition, quoted above,--were prior to the suit which was filed on August 26, 1953, then it is not intelligible as to why the plaintiff Lucky Bidi Company confined itself to two quarters Only when filing the suit; that apart, Section 22 of the Orissa Sales Tax Act,--which provides that no assessment made and no order passed under the Act or the rules made thereunder by the Collector or any person appointed under Section 3 to assist him shall be called into question in any Court, and ho appeal or application for revision or review shall lie against any such assessment or ordert save and except as provided in the section,--is a complete bar to the plaintiff-appellant getting any relief, on the strength of any declaration, if any, in its favour as to the alleged identity of the said two concerns Lucky Bidi Company and Gohil Bidi Company, in respect of assessments other than those covered by the suit; furthermore, in view of the fact,--that the plaintiff did not include or omitted to include in his prayer in the suit, its claim in respect of assessment for other quarters--Order 2, Rule 2, Civil Procedure Code may stand in the way of its filing a fresh suit for those other reliefs. It is also the settled position in law that in taxation matters there is no question of res judicata or estoppel.

4. There is another aspect This is a simple case where the plaintiff-appellant's suit was a suit for a declaration that the assessment orders and notices of demand for payment of taxes levied for two particular quarters are altogether without jurisdiction, unwarranted by law and not binding on the plaintiff-appellant The particular assessment order in respect of the two quarters in question, was the subject-matter of the dispute between the parties; indeed the plaintiff in his plaint made a specific reference to these two quarters both in the body of the plaint and the prayer. Thus, the frame of the suit was such as to make It amply clear that it was capable of valuation by reference to the said two quarters only, which alone, was ultimately to be affected by the result of the suit

Considered from this aspect, we are of opinion that the present suit for a declaration that the assessment orders and notices of demand for payment of taxes for the said two quarters ending 31-12-48 and 31-3-49 are without jurisdiction,--was capable of precise valuation from the pecuniary point of view, and such valuation, as the plaintiff, in fact, put was real, rather than notional, and it was only that much which was to be affected by the suit one way or the other; in other words, it was a case where the subject-matter of dispute was a sum of money with reference to assessment of tax for the particular quarters and was clearly capable of precise and arithmetical valuation and, was in fact so valued in the plaint itself, ,and thus it falls within the ambit of Clause l(a) of Article 133, and not clause (b) thereof.

The subject-matter of the dispute having thus been confined to only two quarters, namely, 31-12-48 and 31-3-49, and the amount of fax being Rs. 4253/- only as aforesaid sub-clause fa) of Clause (1) of Article 133 is the proper provision applicable to this case, arid, sub-clause (b) therefore has no application here.

5. The petition for leave to appeal to the Supreme Court must therefores fail and it is accordingly dismissed; but there will be no order for costs.

R.K. Das, J.

6. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //