Hardayal Hardy and Om Parkash, JJ.
(1) The petitioner in this case onder Section 21 (2) (b) of the Bengal Finance (Sales Tax) Act, 19.41 as extended to Delhi, is a branch office in the State of Delhi of a joint stock company roistered onder the Indian Companies Act 1913 which has Head office at Bombay, The Company h engaged inter alia, in the business of printing and pablishing newspapers and periodicals and making of blocks etc.
(2) During the assessment year 1954-55 the Bombay-office of the Company made certain sales to customers at Delhi. The Sales Tax Officer Delhi included these sales in the turn-over of the petitioner rejecting its contention that the sales having been made by its Head Office at Bombay could nto be taxed in its hands at Delhi.
(3) The petitioner's contention however found favor with the Assistant Commissioner of Sales Tax at Delhi who by his order dated 21st June, 1957. directed exclusion of those sales from the taxable turnover of the petitioner. On toher issues the ease was ordered to be remanded to the assessing authority below.
(4) I appears that this order of the Assistant Commissioner was subject of a suo mtou'' review by his successor and was set aside on 13th July, 1960. Two farther revisions ware thereafter filed by the petitioner, the first before the Coinmissioner of Sales Tax and the second on the dismissal of its first revision, before the Chief Commissioner Delhi. The Chief Commissioner's order dismissing the revision though passed on 2nd September, 1963 was actually communicated to the patitioner on 6th September, 1963.
(5) The points urged by the petitioner in its revision were first, that suo mtou review was based on a decision of the Chief Commissioner dated the 27th May, 1959 in the case of Martin Barn & Co. Limited Calcutta which according to the petitioner was nto a permissible ground for review in law; Secondly that the aforesaid decission was nto applicable to the case of the petitioner on facts and thirdly, that the review itself was barred by time in as mach as the original order had been made on 21st Jane, 1957 while the order of review was made more than three years after that date on 13th July, 1930.
(6) All the three points were decided against the petitioner who thereforee applied to the Chief Commissioner on 8th November, 1963 to state the case to the High Court under Section 21 (1) of the Act. This application was dismissed on 30th November, 1963. firstly on the ground that it was barred by time and there was no sufficient reason for condoning the delay and secondly, that the order was ao patently correct as nto to leave any room for doubt,
(7) The present application by the petitioner is made under Section 21 (2) (b) of the Act and is directed against the aforesaid order of the Chief Commissioner. The prayer is for a direction to the Chief Commissioner (now Lieutenant Governor) Delhi to state the case and refer to this court as many as 8 questions of Jaw which according to the petitioner arise out of the order. The questions formulated by the petitioner are as follows:-
(I)Whether on facts and circumstances of this case the order passed by the Assistant Commissioner of Sales Tax on 21st Jnne,1957 could be reviewed (ii) Whether on facts and circumstances of the case the order could be reviewed by the officer succeeding the one who had made the order (iii) Whether the order of the review dated 13th July 1960 is legal aid nto barred by the period of limitation (iv) Whether in view of the provisions contained in section Ii and Rules 66, 71 and 72 of the Act the order made in this case was barred by time (v) Whether the sales made in Bombay by the Head office at Bombay directly to the customers residing in Delhi are liable to be assessed to sales tax in Delhi (vi) Whether the tax can be imposed on Delhi Branch who is registered dealer Ob the sales which have been made in Bombay by the Head office direct to the customers rasiding in Delhi (vii) That the Head office of. the applicant company cannto be considered to be dealers within the meaning of Bengal Finance (Sales Tax) Act, 1941 as extended to the State of Delhi (viii) That sale prices receded by 'the Head office of the applicant company is respect of sale transactions cannto be considered as turn-over of the applicant's firm within the provisions of the Bengal Finance (Sales Tax) Act, 1941, as extended to the State of Delhi
(8) One of the guevances of the petitioner is that its spvhcation for reference was cispe sed of by the Chief Conimissiocer without any oppr'rtnr,ity of an oral bearing having been afforded to the petitioner. It is urged that if sncb healing had been granted the petitioner would have nto r-nly satisfied the Chief Commissioner that its application was within time }'at it woold have also shown that the order of sao matn review was wholly witbont Jurisdiction and was in any case beyond time. The petinoner would have also shown that the bead office of the pietitioner at Bombay could nto be treated as a dealer within. The mean- ing of Bengal Finance (Sales Tex) Act 1941 as extended to Delhi and that the sales made by it could nto be included in the turn-over of the peiitioner which was registered as a dealer in it-> own right at Delhi.
(9) The petitioner's grievance about its application for reference having been dismissed by the Chief Commissioner without the petitioner havir.g been heald in support of it is nto without substance. An order relusing to State the case is a Judicial order which must be made after ntoice to the petitioner who seeks the relerence and after hearing the oetitior>er oi its counsel. We also cannto appreciate the attitude of cock-sure certitude adopted by the Chief Commissioner in this ca^. It is tiuc that if a question of law is so well settled by an authJritative pionounceroent of tbt . Supreme Court or the High Court that there can be no doubt about the answer than such a question need nto be referred as the reffience of such a case would amount to wasting the time of superior courts. But the questions arising in the present case, or at any rate some of them, can hardly be regarded as falling under that de'cliption.
(10) We thereforee allowed the learned counsel to address as on all the aspects of the case with a view *o enable u^ to decide if the petitioner's application (or reference had been dismissed without th're baing any satisfactory basis for the decision. While we are convinced that some of questions arising out of the Chief Commissioner's order dated dtob November, fH63 are un-doubtedly questions of law we 6nd ourselves in agreement with the Chief Commissioner tl.at the petitioner's appli- cation under Section 21 (1) of the Act was barred by time and this precluded a rcierence being made to the High Court on the questions formulated by ttie petitioner and in turn our own jurisdictian to call Jor a statement of the case under section 21 (2) (b).
(11) As already stated the order in revision was made on 2nd Sep. tember, 1963 but since the announceJent was nto made in the presence of the petitioner or its rep e^entative it was communicated to the peti- tioner and received by it on fitti September, 1963. The communication which was nto accompanied by a copy of the order merely informed the petitioritr that its applicaticn for revision had been dismsssed. The pttitioner didntotalse.bnv steps to inappct the file to acquaint itself with the contents of the older and its applicadon for grant of copy of oft^^Tdet was also made for the first time on ^7th September, 1963. The copy was delivered to the petitioner on 5th October, 1963 while its application under aectioii 21 (1) was filed on 8th November, l63.
(12) In these circumstances, the question for consideration is whe- tbere the application was within time. The period of limitation for making such an application is 60 days from the passing of the order. The older in this case having been paseed on 2nd) Septembeher, 1963, the application filed on 8th november 1963 is prima facie barred by time unless time is eaved by sometoher provision law. The petitioner contends that if the time srent by it: in obtaining ceitified copy of the older is excluded the application would bewell within time.
(13) It seems to ns that section 12(2) of the Limitation Act, 1908 which provides for exclusion of time requsite for obtaining a copy of the order applies only to appeals. applications for leave to appeal and application for review of judgments An application for reference under section 21 (I) of the Bengal Finance (Sales Tax) Act, 1941 dees noccrire within the category of such applications and thereforee for the purpose of computing: limitation thei(r)aticn the tine riquisite for obtaining a copy of the cider cannto be excluded under seCtion 12 12) of the Act. Counsel for the peitioner however relied upon a judgment of the Orissa High Court in Eharat Sabaigrats Ltd. v. Collectdr of Commercial Taxes and on a Divisior. bence judgirent of Lahore High Court in Muhmmad hayat v. Hali Mahmmad Sardar^ in 'upport of his argument that section 29 (2) of the limitation Act 1908 makes the provisions contained in section 4, sections 9 to l8 and section 22 applicable to applications under any special cr local law in so far as and to the extent to.which they are nto expiessly excluded by such special or local law. It is urged that there is ntohing in the Bengal Finance (Sales Tax) Act which expressly excludes the operation cf section 12 cf the limitaticn Act to an application under section 21 of the said Act.
(14) A close examination of the cases cited by the learned counsel however shows that the learned Judges in these cases neither examined nor decided whether an application under section .24(2) of the Orissa Sales Tax Act, 1947 or an application under section 66 of the Indian Income-tax Act, 19..2, fell within any of the categories of appeal, application fcr leave to appeal or an application for review mentioned in sec corporation 2(2) of the limitation Act. These decisions are thereforee of no help to the petitioner.
(15) As against that the learned counsel for the State referred to a decision of Lahiri C J. and Bachawat 1. (as he then was in Director of Suplies and Disposals.Calcutta v Member Board of Revenue, Government of West Bengal, where it was held :-
'SECTION 12(2) of the Indian Limitatiol) Act, 1908, is attracted to a proceeding under the Bengal Finance (Sales Tax) Act, 1941 but the operation of section 12(2) is limited to an appeal, an application for leave to appeal and an application for a review of judgment. An application for reference under Section 21(1) of the Bengal Finance (Sales Tax) Act, 1941 does nto come under any of the categories mentioned in section 12(2) of the Limitation Act and thereforee anassessed is nto entitled to exclude the time requisite for obtaining; a copy of the order against which that application for reference is made.'
(16) A similar view has also been taken by a division Bench ' of the Punjab High Court (A N . Grover and S.K Kapur, If.) in case decided on 26th May, 1965 Banarsi Das MussadiLal v. Commissianer of Sales Tax.
(17) Faced with this difficulty, learned coanssi for the petitioner submitted that although by the communication dated 5th September, 1963 the petitioner was informed that its revision had been dismissed the petitioner was neither called upon to inspect the ordar nor was a copy of the order enclosed with the communication. As it was necessary for the petitioner to know the reasons for dismissal of its application before it could make up its mind to approch^ the' Chief Commisioner to refer to the High Court the question of law arising from his order, the starting paint of limitation would be 5th October, 1963 when the copy of the order was actually delivered to the petitioner. Reliance for this argument was placed on a decision of the High Court of Saurashtra in Commssioner of Sales Tax v. Ratilal Nanchand shah where on a construction of section 30(I) of the Saurashtra Sales Tax Ordinance 1950 which provided that an application to the Tribnual to refer the case to the High Court was to be made within (60) days from the passing of the order by the Tribunal, it was held that limitation for making an application started nto from the date of the order but from the date when the order was communicated to the party.
(18) The argument advanced before the learned judges in that case was that a decision could nto be said to be passed until it was pronounced or published under such circumstances that the parties affected had a reasonable opportunity of knowing what it contained and that thereforee the period of 60 days ought to be computed from the date on which the order was communicated and nto earlier.
(19) The next case relied upon was Govind v. Commissiner of Sales Tax. Madhya Pradesh* where it was heid that the expression 'passing an order' must be so construed as to mean that it is passed in the presence to the party or is passed on the date on which ntoice is given to the party or where no such date is given to the party or where no such date is lixed on the date the party receives a copy of the order. Merely intimating ' that that appeal or application has been dismissed is nor. enough.
(20) Roe view taken in the above case is based on a decision of Madras High Court in The. Secretary o' State }of Inilia in Council v. Gopsetti Narayanswami Naidu guru'. Explaining this case in Muthiah Chetttar v The Commisioner of Income-tax madras Raj manner C.J. who spoke for that court observed that the learned judges in that case viz., 34 madras 151 were no doubt faced with the difliculty of straining the language which prima facie did nto impart a date difterert from the dale when the order was actually passed and went on to say, 'on the toher hand, we consider that the rule laid down by the learned judges.... is based on a salutary and just principle, namely that if a person is given a right to if sort to the remedy to get rid of an order within a prescribed time, linnitation should nto be computed from a date earlier than that on which the party aggrieved actually knew of the order and thereforee. most be presumed to have had knowledge of the order,'
(21) We are in respectful agreement with the view expressed by rajamannar C.J. and Panchapakesa Ayyar J. in Muttiah Chettir's case and are of the opinion that in the present casf limitation should be computed from 6th September, 1968 when the petitioner actually knew of the order on receipt of a communication from the Chief Commissioner that the revision petition had been dismissed.
(22) The petitioner has nto placed on the record any material to show that before the order was passed by the Chief Commissioner no date for announcement of the order had been fixed by him. In the application for reference filed by the petitioner all that was stated is that its revision petition had been dismissed by the Chief Commissioner by his order dated 2nd September, 1933. Even the fact that the order was communicated to the petitioner on 6th September, 1963 does nto appear to have been mentioned in that application, li its application under section 21(2)(b) filed in this court also there is no mention about the order dated 2nd September, 1968 having been passed by the Chief Commissioner without a date for aanouncement of the order having been fixed by him for the purpose. The grievance made by the petitioner in para 17 of its application is in these terms
'IT is submitted that the Chief Commissioner erred in coming to the conclusion that the aforesaid reference application of the assessed was barred by time. The order of the Chief Commissioner made in revision petition on 2nd September, 1963 was nto communicated to the petitioner. All that the petitioner received was a letter from the Chief Commissioner's office dated 5th September 1933 saying that 'In the case cited as subject I am directed to inform you that your revision petition dated 21st March, 1961 has bsen rejected by the Chief Commissioner vide his order dated 2nd September, 1963.'
(23) In para 18 again where the petitioner has set out its contention that limitation would run from date when the petitioner was able to gat a copy of the order i.e. 5th October, 1963, the only grievance made out is that no opportunity to inspect the aforesaid order dated 2 ad September, 1963 was given to the petitioner and that the petitioner was merely communicated the result of the order mada by the Chief Commissioner by a bald statement to the effect that its revision peuition had been dismissed.
(24) In the absence of any averment to the effect that no date for pronouncement of the order had actually been fixed by the Chif Commissioner, it is nto possible to hold that the petitioner had no opportunity of acquainting itself with the contents of the order.
(25) As was held by the High Court of Orissa in M..A. Tullock and Co. v. The State of Orisia* 'it is the look out of the petitioner to appear personally or through a counsel on the date actnally fixed for delivery of judgment or on any toher date to which it is adjourned and the date of refusal must be the date on which the petitioner would have known of the order if he had appeared before the Tribunal.'
(26) In this state of evidence it may even be reasonable to hold that the starting point of limitation in this case will be 2ad September 1963 but in any case limitation must be held to have started against the petitioner on and from 6th September, 1963 when the Chief Commissioner's order was communicated to it. it has already been mentioned that even after receiving the communication the petitioner did nto take any steps to inspect the file and that its application for supply of a copy was also made on 27th September, 1903. After receiving the copy of the order also the petitioner waited till 8th November, 1963 for making its application under section 21(1) of the Act.
(27) In the circumstancess we are of the opinion that the Chief Commisioner was right in holding that the application filed by the petitioner was barred by time.
(28) In similar circu rstances a Division Bench of Patna High Court in Ramji Soman Choudhary v. The State of Bihar'' while construiog the provisions of section 21 (1), (2) and (3) of the Bihar Sales Tax Act, 1947 observed:-
'IF the application made to the Board itself for reference under sub section (1) of section 21 is beyond time, then the provisions of sub-section (l) cannto be circumvented by filing under sub-section (2) an application to this Court within time from the date of refusal by the Board. The language of Sub-section (3) itself suggests that the High Court will require the Board of Revenue to state a cause only where the High Court was nto satisfied that such refusal was jastified. The refusal evidently would be justified if the application to the Board for reference was made beyond time, and in those circumstances, it would nto be open to the High Court to call for a statement of case, because whatever the toher reasons may be on merits, the order of the Board refusing to make a reference would be on the face of it legal and valid.'
(29) 'THE result is that the application fails and is dismissed with costs. Counsel's fee Rs. 150.00.