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Burmah-shell Oil Storage and Distributing Company of India Ltd. Vs. the Punjab State - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Civil
CourtPunjab and Haryana High Court
Decided On
Case NumberGeneral Sales Tax Reference No. 6 of 1962
Judge
Reported in[1964]15STC624(P& H)
AppellantBurmah-shell Oil Storage and Distributing Company of India Ltd.
RespondentThe Punjab State
Appellant Advocate Ganga Parshad Jain and; B.S. Gupta, Advs.
Respondent Advocate J.D. Kaushal, Sr. Deputy Adv. General and; R.C. Dogra, Adv.
Cases ReferredChaman Lal & Bros. (Private) Ltd. v. The Punjab State and Ors.
Excerpt:
.....judge in exercising powers of superintendence under article 227 of the constitution. - the financial commissioners in a number of cases, of which mention has been made in the order of reference, have laid down the rule that revision petitions filed more than 90 days subsequent to the commissioners' orders, after excluding the days spent in obtaining copies, should be held to be time-barred unless some good ground was shown for the delay in filing the revisions. in some cases the delay may be explained and the revising authority may be satisfied that the person making the petition for revision was not to blame for delay and his petition may be entertained on that short ground. 12. there is one other aspect, which also deserves to be borne in mind in cases like the present. this..........the state for the period subsequent to 1st january, 1954. the assessee-company feeling aggrieved filed a revision on 29th september, 1959, under sub-section (2) of section 21 of the act before the financial commissioner against the order dated 1st may, 1959, of the commissioner. the learned financial commissioner, as per order dated 11th april, 1960, dismissed the revision petition in limine on the ground of being time-barred. it was held that the time normally allowed for filing of revision petitions was 90 days, while the revision petition had been filed on the expiry of 125 days. twenty-seven days were found to have been spent in getting copies from the excise and taxation commissioner and as such the petition was held to be barred by 8 days. as no explanation was furnished for the.....
Judgment:
ORDER

H.R. Khanna, J.

1. This is a reference under Section 22 of the Punjab General Sales Tax Act, 1948 (Punjab Act No. XLVI of 1948) hereinafter referred to as the Act, and the question referred for decision is :

Whether the Financial Commissioner is bound to consider the revision petition filed before him on the merits in spite of the delay that had occurred in making the application ?

2. Briefly stated the facts of the case are that the Assessing Authority, Patiala, assessed as per order dated 28th July, 1954, Burrnah-Shell Oil Storage and Distributing Company of India Limited to sales tax of Rs. 50,425-14-0 on a taxable turnover of Rs. 16,13,627-13-0 for the assessment year 1953-54. The assessee-company then went up in appeal against the aforesaid order and the Deputy Excise and Taxation Commissioner, Patiala, as per order dated 27th August, 1956, accepted the appeal, set aside the order of the Assessing Authority and remanded the case for de novo assessment. The Excise and Taxation Commissioner thereafter took action under Sub-section (1) of Section 21 of the Act and, as per order dated 1st May, 1959, revised the order dated 27th August, 1956, of the Deputy Excise and Taxation Commissioner and directed that the Assessing Authority should make de novo assessment in respect of inter-State sales made by the assessee-com-pany from its branches outside the Punjab where the goods were delivered for consumption in the State for the period subsequent to 1st January, 1954. The assessee-company feeling aggrieved filed a revision on 29th September, 1959, under Sub-section (2) of Section 21 of the Act before the Financial Commissioner against the order dated 1st May, 1959, of the Commissioner. The learned Financial Commissioner, as per order dated 11th April, 1960, dismissed the revision petition in limine on the ground of being time-barred. It was held that the time normally allowed for filing of revision petitions was 90 days, while the revision petition had been filed on the expiry of 125 days. Twenty-seven days were found to have been spent in getting copies from the Excise and Taxation Commissioner and as such the petition was held to be barred by 8 days. As no explanation was furnished for the aforesaid delay, the petition was dismissed. The assessee-company then filed an application before the Financial Commissioner under Sub-section (1) of Section 22 of the Act for making a reference to the High Court on the following two questions of law :-

(1) Whether there is any justification in law in holding that the limitation for filing a revision petition under Section 21 of the East Punjab General Sales Tax Act, 1948, is 90 days ?

(2) Whether, in the circumstances of this case, there was any justification in law for the learned Financial Commissioner, Punjab, to dismiss the revision petition in limine, even if it was filed late by 8 days according to his view of the law regarding limitation ?

3. The Financial Commissioner declined to make the reference and dismissed the application as per order dated 19th December, 1960. It was observed that though there was no statutory limitation in the Act prescribing a period of 90 days, the practice in vogue for the last several years was that a revision petition filed more than 90 days subsequent to the Excise and Taxation Commissioner's order, after allowing the time spent in obtaining copies, should be held to be time-barred. The assessee-company thereupon moved this Court under Clause (b) to Sub-section (2) of Section 22 of the Act with a prayer that the Financial Commissioner be required to state the case and refer it to the High Court on the above two questions. A Division Bench of this Court as per order dated 16th May, 1962, ordered that the question of law mentioned in the first part of this order should be referred to this Court for decision. The Financial Commissioner, accordingly, made the present reference to this Court as per order dated 17th August, 1962.

4. Section 21 of the Act vests the power of revision in the Commissioner and Financial Commissioner under the Act. Sub-sections (1) to (2-a) of that Section deal with the exercise of such powers by the Commissioner, while Sub-sections (3) and (4) pertain to the exercise of such powers by the Financial Commissioner, with which we are concerned in the present reference, and read as under :-

(3) The Financial Commissioner may, at any time, call for the record of any case decided under the preceding Sub-sections and if, in his opinion, the final order contains an erroneous decision on an important question of law, he may pass such order on the case as he may think fit.

(4) No order shall be made under this Section, which adversely affects the rights of an assessee or other person upon whom an obligation is imposed by or under this Act, without giving such assessee or other person a reasonable opportunity of being heard.

5. It has been argued on behalf of the assessee-company by Mr. Jain that Sub-section (3) of Section 21 specifies no period of limitation and gives a power to the Financial Commissioner to call at any time for the record of a case decided by the Commissioner. The Financial Commissioner, in the circumstances, according to the learned counsel, was not justified in dismissing the revision on the ground that it was filed more than 90 days, after excluding the days spent in obtaining copies, from the date of the decision of the Commissioner. In this respect I am of the view that though the statute has prescribed no period of limitation for filing a revision, there is nothing in the language of Section 21 which prohibits the Financial Commissioner from refusing to entertain revisions which are filed after a long delay unless a cogent explanation is furnished for that delay. The Financial Commissioners in a number of cases, of which mention has been made in the order of reference, have laid down the rule that revision petitions filed more than 90 days subsequent to the Commissioners' orders, after excluding the days spent in obtaining copies, should be held to be time-barred unless some good ground was shown for the delay in filing the revisions. It would, thus, appear that the Financial Commissioners have fixed a period of 90 days within which their revisional jurisdiction may be invoked. The aforesaid period, in my opinion, is not so short as can be deemed to be unreasonable so as to render the right of approaching the Financial Commissioners in revision illusory. The language of Sub-section (3) of Section 21 of the Act, reproduced above, shows that though a power is vested in the Financial Commissioner to revise an order of the Commissionor on the ground that it contains an erroneous decision on an important question of law, there is no obligation imposed upon him to entertain a revision even if he considers the same to be belated as having been filed more than 90 days of the date of the decision or the order of the Commissioner. In Kangra Valley Slate Company, Limited, Ghaniara, District Kangra v. The Punjab State, etc. [1961] 12 S.T.C. 362, a Division Bench of this Court dealt with a case in which the Financial Commissioner had dismissed a petition for revision under the Punjab General Sales Tax Act on the ground that the petition had been filed after 152 days of the order of the Excise and Taxation Commissioner, and it was observed as under :-

It will be a sound exercise of discretionary powers to decline to entertain the revision on account of the delay of 58 days in some cases but it may not be so in some other cases. On the facts and circumstances of each case it will have to be found whether or not the discretion should be exercised to dismiss the petition for revision on the ground of inordinate delay. In some cases the delay may be explained and the revising authority may be satisfied that the person making the petition for revision was not to blame for delay and his petition may be entertained on that short ground. In other cases where the delay is not satisfactorily explained, the revising authority may refuse to exercise its discretionary power of revision in favour of a person who files the belated petition. It is true that no particular period is prescribed in the Limitation Act within which a petition for revision must be filed, but the revising authorities are vested with discretion in the matter of entertaining such petitions and in suitable cases they are in their discretion entitled to refuse to entertain those which are filed after unreasonable delay.

6. Mr. Jain has referred to the case, Chaman Lal & Bros. (Private) Ltd. v. The Punjab State and Ors. 63 P.L.R. 495, decided by my learned brother Dua, J., but on reference to it I find that it was decided on its particular facts. It would appear that in that case the memorandum containing the information about the order of the Excise and Taxation Commissioner was not sent to the assessee. It was in those circumstances that the Court held that the Financial Commissioner was not justified in dismissing the revision petition as time-barred.

7. As a result of the above, I would answer the reference in the negative. The parties, in the circumstances, are left to bear their own costs of this reference.

Inder Dev Dua, J.

8. I agree that the reference be answered in the negative. I may, however, add a few words.

9. The petitioners' cbunsel has with some eloquence argued that on an earlier occasion pertaining to assessment for the year 1951-52, a revision was entertained by the Excise and Taxation Commissioner after the expiry of more than two years at the instance of the State against the petitioners, even though a period of 180 days has been prescribed as the period of limitation by Section 21(2) in that case, whereas now when the petitioners have approached the Financial Commissioner on revision, he has declined to entertain the revision merely on account of delay of 8 days after the expiry of 90 days, though no period of limitation for such revision has been fixed by the statute.

10. The respondent's counsel has submitted that in the earlier case the facts were peculiar and the Excise and Taxation Commissioner perhaps found satisfactory grounds for extending the period whereas in the case in hand, there is absolutely no explanation for the delay of 98 days after excluding the days spent for obtaining copies and that this delay has been rightly considered to be undue.

11. I may appropriately observe that where a right is conferred by Legislature on a party to approach a judicial tribunal for adjudication of a controversy, the fixation of period of limitation for so approaching would ordinarily also pertain to legislative sphere. True, undoubtedly it is, that power in this respect can lawfully be delegated, but, at the same time, the judicial wing of the administration may not, in my view, legitimately exercise direct legislative power by fixing a rigid period of limitation for exercising the right conferred by the Legislature. On behalf of the respondent also, in the case in hand, it is not claimed and, in my opinion, rightly that the Financial Commissioner could in the course of adjudication of controversies fix a rigid period of limitation beyond which a revision petition cannot be entertained and indeed even the observations from the judgment in Kangra Valley Slate Company's case [1961] 12 S.T.C. 362, do not support any such claim. It is in each case that the Financial Commissioner has to decide in his judicial discretion by looking at all the relevant attending circumstances whether or not the delay is so inordinate as to justify refusal to afford a hearing on the merits to the aggrieved party. Drawing of an arbitrary line of 90 days for all cases, in my opinion, partakes more of a legislative rather than of a judicial function, for judicial power is only concerned with. what law is or has been, and legislative, with what law shall be. A precedent in the form of a decision by a Financial Commissioner may serve as a helpful analogy on the question of undue delay but it cannot constitute a rigid rule of law partaking of a legislative mandate excluding exercise of judicial discretion in future cases in a disciplined and responsible manner on the facts and circumstances, on each occasion, as if the officer concerned has already made up his mind in the sense of being bound by a law-giver's command. An authority, if I may so put it, may offend even by adopting a self-imposed rigid rule resulting virtually in abdication of genuine discretion. Power to decide, in my view means to come to a decision with reference to the merits by forming judgment on the facts as intended by the statutory enactment.

12. There is one other aspect, which also deserves to be borne in mind in cases like the present. The right of revision is undoubtedly conferred on the Financial Commissioner without conferring a right on the aggrieved party to approach him. It may, therefore, be argued from one point of view, as indeed a suggestion has been thrown at the Bar before us also, that it is in the absolute discretion of the Financial Commissioner whether or not to exercise the suo molu power of revision. But in so far as an order of the Financial Commissioner passed on revision involves a question of law, it confers on the aggrieved party an express and affirmative right to have, according to the prescribed procedure, the question referred to this Court for authoritative decision. That right does not depend on the discretion either of the Financial Commissioner or of this Court, for there is a legal obligation on the Financial Commissioner to refer and on this Court to decide the question of law involved though the jurisdiction of this Court partakes of an advisory nature. This would seem to suggest that in the suo motu exercise of power of revision by the Financial Commissioner, the dealer whose liability is affected by the order would have vital interest at least for the purpose of exercising his legal right of reference under Section 22, and from that point of view, a right to move the Financial Commissioner might well be considered to be inherent or implied without the statute expressly saying so.

13. Now, if that be so, then it may give rise to a more serious challenge to the power of the Financial Commissioner in fixing an arbitrary and rigid period of limitation of 90 days beyond which no revision should be entertainable, thereby, denying to the aggrieved party adjudication of his grievance.

14. Be that as it may, it is unnecessary on this occasion to pursue this matter any further because on the facts and circumstances of this case, the Financial Commissioner was, in my view, not bound to consider the revision petition on the merits because of the unexplained delay in making the same and I agree with my learned brother in the answer.


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