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Sales Tax Commissioner (First Member, Board of Revenue, Kerala) Vs. M. Peres and Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectSales Tax;Constitution
CourtKerala High Court
Decided On
Case NumberCivil Misc. Petn. No. 112 of 1956
Judge
Reported inAIR1958Ker53; [1957]8STC812(Ker)
ActsConstitution of India - Article 133; Cochin Sales Tax Act, 1121 M.E. - Sections 24(5)
AppellantSales Tax Commissioner (First Member, Board of Revenue, Kerala)
RespondentM. Peres and Co. Ltd.
Appellant AdvocateGovt. Pleader
Respondent Advocate K. Rama Iyer and; A.V. Ramanatha Iyer, Advs.
DispositionPetition dismissed
Cases ReferredIn Jamnadas Prabhudas v. Commr. of I.T.
Excerpt:
.....was judgment in sales tax reference - whether judgment in sales tax reference case judgment, decree or final order - sales tax reference was under section 24 (5) - petition failed as judgment delivered under section 24 (5) was not judgment, decree or final order as contemplated by article 133. - - (2) if, on any application being made under sub-section (1), the commissioner of sales tax refuses to state the case on the ground that no question of law arises, the assessee may within six months from the date on which he is served with notice of the refusal apply to the high court, and the high court, if it is not satisfied of the correctness of the decision of the commissioner of sales tax may require the commissioner of sales tax to state the case and to refer it, and on receipt..........no. 2 of 1954.2. under article 133 an appeal lies to the supreme court only 'from any judgment, decree or final order in a civil proceeding' and the questions that have to be determined at the very outset are:1. does our judgment in sales tax reference no. 2 of 1954 constitute 'a judgment, decree or final order'? and 2. even if it does, can it be considered a judgment, decree or final order 'in a civil proceeding'? 3. the sales tax reference was under sub-section (1) of section 24 of the cochin sales tax act, xv of 1121. sub-sections (1) (omitting the twoprovisos thereto), (2) and (5) of section 24 read as follows:'(l) within sixty days of the date on which he is served with notice of an order under section 16, or of an order under section 17 or of an order under section 18,.....
Judgment:

M.S. Menon, J.

1. This is a petition by the Sales Tax Commissioner (First Member, Board of Revenue), Trivandrum, for a certificate under Article 133 of the Constitution. The decision in respect of which the certificate is sought is our judgment in Sales Tax Reference No. 2 of 1954.

2. Under Article 133 an appeal lies to the Supreme Court only 'from any judgment, decree or final order in a civil proceeding' and the questions that have to be determined at the very outset are:

1. Does our judgment in Sales Tax Reference No. 2 of 1954 constitute 'a judgment, decree or final order'? and

2. even if it does, can it be considered a judgment, decree or final order 'in a civil proceeding'?

3. The Sales Tax Reference was under Sub-section (1) of Section 24 of the Cochin Sales Tax Act, XV of 1121. Sub-sections (1) (omitting the twoprovisos thereto), (2) and (5) of Section 24 read as follows:

'(l) Within sixty days of the date on which he is served with notice of an order under Section 16, or of an order under Section 17 or of an order under Section 18, enhancing an assessment or penalty or otherwise prejudicial to him, the assessee in respect of whom the order was passed may by application accompanied by a fee of one hundred rupees require the Commissioner of Sales Tax to refer to the High Court any question of law arising out of such order, and the Commissioner of Sales Tax shall, within sixty days of the receipt of such application, draw up a statement of the case and refer it with his own opinion on the question of law to the High Court.

(2) If, on any application being made under Sub-section (1), the Commissioner of Sales Tax refuses to state the case on the ground that no question of law arises, the assessee may within six months from the date on which he is served with notice of the refusal apply to the High Court, and the High Court, if it is not satisfied of the correctness of the decision of the Commissioner of Sales Tax may require the Commissioner of Sales Tax to state the case and to refer it, and on receipt of any such requisition, the Commissioner of Sales. Tax shall state and refer the case accordingly.

(5). The High Court upon hearing of any such case shall decide the questions of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Commissioner of Sales Tax by whom the case was stated a copy of such judgment under the seal of the Court and the signature of the Registrar and the Commissioner of Sales Tax shall dispose of the case accordingly.'

4. In Prem Chand v. State of Bihar, AIR 1951 SC 14 (A), the question as to whether a judgment under Section 21 of the Bihar Sales Tax Act, VI of 1944, can be considered as 'a final judgment, decree or order' coming under Clause 31 of the Letters Patent of the Patna High Court came up for decision. The judgment summed up the provisions of Section 21 of the Bihar Sales Tax Act, VI of 1944 as follows:

'Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court the applicant may apply against such refusal, and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also provides that

The High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judgment under the seal of the Court........and the Boardshall dispose of the case accordingly','

and said:

'It seems to us that the order appealed against in this case, cannot be regarded as a final order, because it does not of its own forcebind or affect the rights of the parties. All that the High Court is required to do under Section 21, Bihar Sales Tax Act, is to decide the question of law raised and send a copy of its judgment to the Board of Revenue. The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court. It is true that the Board's order is based on what is stated by the High Court to be the correct legal position, but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties, and the final order in the matter is the order which is passed ultimately by the Board of Revenue. This question has been fully dealt with in Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority, Bombay, AIR 1923 PC 148 (B), where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight & the Tabernacle Permanent Building Society, (1892) 62 LJ QB 33 (C) :

'In the case of Ex parte County Council of Kent, (1891) 1 QB 725 (D), where a statute provided that a case might be stated for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order, yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was nothing which amounted to a judgment or order'.'

5. Section 24(5) of the Cochin Sales Tax Act, XV of 1121, corresponds to Section 66(5) of the Indian Income-tax Act, 1922:

'The High Court upon the hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment.'

In Jamnadas Prabhudas v. Commr. of I.T., Bombay, AIR 1952 Bom 479 (E), the question as to whether a certificate under Article 133 can be given in respect of a 'judgment' under Section 66(5) came up for consideration. It was held that the expression 'judgment, decree or final order' used in Article 133 of the Constitution will not cover such a 'judgment' and that the certificate obtained is one under Section 66-A(2) of the Indian Income-tax Act, 1922.

6. In delivering the judgment of the Court, Chagla, C. J., said:

'Now, the first question that has got to be considered is whether a judgment of this Court under Section 66 is a judgment contemplated by the expression 'judgment, decree or final order'. Sir Jamshedji's contention is that Section 66(5) provides that the High Court upon hearing of the reference shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded, and a copy of the judgment has to be forwarded to the Appellate Tribunalwhich shall pass such orders as are necessaryto dispose of the case conformably to such judgment, and therefore according to Sir Jamshedji there is an obligation upon the revenue authorities to conform to the judgment; the High Court in delivering a judgment decides the case and therefore the decision of the High Court is a judgment within the meaning of Article 133(1).

If 'judgment' was used in the sense in which that expression is used in the Civil Procedure Code and in the sense in which it is used in Section 66 (5), viz., the grounds on which the decision of a Court is based, then undoubtedly Sir Jamshedji would be right. But, in our opinion, -- and our opinion is supported by .authorities as I shall presently point out --, the expression 'judgment, decree or final order' used in Article 133(1) is used in its technical English sense, which means a final declaration or determination of the rights of parties and it also means a decision given on merits. 'Judgment, decree or final order' is a compendious expression and each one of the parts of this expression bear the same connotation, viz., that there is an adjudication by the Court upon the rights of the parties who appear before it. 'Judgment' must not be read in this context in contradistinction to 'decree or final order'.

Emphasis is also placed by Sir Jamshedji on the fact that whereas 'order' is qualified by 'final', 'judgment' is not so qualified. We do come across the expression 'final judgment,decree or order' for instance in Clause 39, Letters Patent. But if the expression 'judgment' itself-connotes a final adjudication by the Court upon the rights of parties, the adjective 'final' which acted as a prefix to the word 'judgment' was really tautologous and 'judgment' by itself without the qualifying expression 'final' still retains the same connotation of finality.

This expression has also been used in the Government of India Act in Section 205, and that section provided for appeals to the Federal Court from any judgment, decree or final order of a High Court in British India where the High Court certified that the case involved asubstantial question of law as to the interpretation of the Government of India Act or any Order in Council made under the Act, and that expression has also come in for interpretation and the interpretation put upon Section 205 has been that the judgment there means a final declaration or determination of rights of parties, and it is difficult to hold that our constitution makers with Section 205 before them when they used the same language that was used in Section 205 used it with a different meaning in Article 133(1).'

7. We entertain no doubt that a 'judgment' delivered under Section 24(5) of the Cochin Sales Tax Act, XV of 1121, is not a 'judgment. decree or final order' as contemplated by Article 133 of the Constitution, and that this petition should fail.

8. In the view we have taken it is unnecessary to decide the second of the two questions mentioned in para. 2 above and it is not considered in this judgment.

9. The petition is hereby dismissed thoughin the circumstances of the case without anyorder as to costs.


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