1. A Division Bench of this court by its order dated 17th August, 1964, had directed the Financial Commissioner to state the case and refer the following questions of law :-
(a) Whether the learned Financial Commissioner was not bound to decide the case on merits in view of the fact that there was no period of limitation prescribed for filing the petition for revision under Section 21(3) of the Punjab General Sales Tax Act, 1948 ?
(b) Whether the learned Financial Commissioner was justified in dismissing the revision petition in limine on the ground of delay, especially when there is no limitation prescribed ?
2. On a reference to the record we find that the statement of the case in:the reference made by the Financial Commissioner is not in accordance with the provisions of Section 22(3) of the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the 'Act'). We were first inclined to remand the case for the requisite reference to be drawn up but in view of the issues raised and the scanty reference to facts which is necessary, we are not adopting the said course.
3. Messrs Bahadur Chand Chaman Lal, petitioners, are a partnership concern duly registered under the Act and are engaged in the business of commission agents dealing in ghee. For the assessment year 1955-56 the petitioner-firm filed all the quarterly returns for that year showing a gross turnover of Rs. 21,976-4-9 claiming certain deductions on account of sales to registered dealers under Section 5(2)(b) of the Act. The assessing authority, however, made additions to the taxable turnover which effected an addition of Rs. 8,694.25 nP. to the sales tax already paid by the petitioner-firm. Against this order the petitioner-firm went up in appeal which was rejected by the Deputy Excise and Taxation Commissioner and similarly the revision filed under Section 21 of the Act met the same fate at the hands of the Excise and Taxation Commissioner on the 27th October, 1961. Thereafter a further revision was moved by the petitioner to the Financial Commissioner (Revenue) which was received by him on 23rd February, 1962. On the 5th April, 1962, the learned Financial Commissioner rejected this revision petition in limine on the ground that the same was barred by time. Thereupon the petitioner moved an application before the Financial Commissioner under Section 22(1) praying for referring the question of law arising from the earlier order but this was also disallowed on the 27th of July, 1963. Thereafter the petitioner moved this court and obtained the order of the Division Bench referred to above.
4. Mr. Bhagirath Dass in support of this reference relying strongly on the provisions of Section 21(3) of the Act contends that no period of limitation has expressly been provided by the statute and in fact, the Legislature has by design given the widest amplitude of powers to the Financial Commissioner to interfere in his revisional jurisdiction at any time. Particular emphasis has been placed on the use of the words 'at any time' in the abovesaid provision. In support of his contention, the learned counsel has sought to place reliance on National Rayon Corporation Limited v. The Additional Assistant Excise and Taxation Commissioner, Punjab 15 S.T.C. 746, and The State of Kerala v. K. M .Cheria Abdulla and Company 16 S.T.C. 875.
5. At the very outset we wish to observe that the two authorities relied upon by the learned counsel have no direct bearing on the question that falls for determination in the present case. In the National Rayon Corporation Limited's case 15 S.T.C. 746 referred to above, the Division Bench of this court had held that Section 21 of the Sales Tax Act, 1948, was altogether separate from and unconnected with the powers of reassessment by an assessing authority under Section 11-A and the limitation mentioned in Section 11-A cannot be read into that section. Similarly, we notice on a close perusal of the judgment of their Lordships of the Supreme Court in the State of Kerala v. K. M. Cheria Abdulla and Company 16 S.T.C. 875 that the ratio of that case is not applicable to the facts of the present one. However, the provisions of the statute around which the controversy revolves are in the following terms :
21. (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.
6. On a plain reference to the abovesaid provision it is patent that the Legislature has designedly refrained from fixing any statutory period of limitation for the exercise of the revisional jurisdiction by the Financial Commissioner. The use of the words 'at any time' is equally significant. In the light of these provisions a reference to the order of the Financial Commissioner in the impugned order dated 5th April, 1962, is instructive. He had observed as follows :
On examining the record of this case, I find that this revision petition is time-barred as the calculations given below will show....
Allowing the normal 90 days for filing such revisions, this petition is thus time-barred by 112-90 = 22 days.
7. The learned Financial Commissioner proceeded to reject the revision petition in limine on this ground.
8. On perusing the contents of the abovesaid order it is obvious that the approach of the learned Financial Commissioner was one of absolute rigidity rather than that of flexibility. The dismissal of the petition proceeded on the ground that it could not be entertained after the normal period of 90 days for filing such petitions according to the settled practice of that Tribunal. It appears that the learned Financial Commissioner equated the practice of the fixation of 90 days by the Tribunal with a statutory provision of limitation. It is well-settled that in the case of a period of limitation fixed by statute, every day's delay has to be reasonably explained. This, however, cannot be said to be the criterion where the period of limitation is fixed only by practice. The drawing of an absolute and fixed line of 90 days for all cases partakes more of a legislative rather than of a judicial function. In our view in the absence of a statutory period of limitation a flexible approach to the question consistent with the facts of each case is called for. On the peculiar facts and circumstances of this case, therefore, we are. of the view that the Financial Commissioner was not justified in dismissing the revision petition inlimine on the ground of delay. We would accordingly direct that the learned Financial Commissioner should proceed to decide the case on merits. Both the questions under reference are, therefore, answered in the negative as held above.
9. In the end we wish to make it clear that we may not be understood as laying down that in the absence of a statutory period of limitation, the Financial Commissioner under Section 21(3) cannot follow a reasonable rule of practice specifying the period within which he would normally exercise his revisional jurisdiction. In fact such a practice is both necessary and inevitable. On this point we are entirely in agreement with the views earlier expressed by the Division Bench in Kangra Valley State Company Limited v. The Punjab State and Anr. 12 S.T.C. 362, and particularly the following observations of Khanna, J., in Burmah-Shell Oil Storage and Distributing Company of India Ltd. v. The Punjab State 15 S.T.C. 624.:
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 Commissioner 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.
10. This reference is answered accordingly. No order as to costs.