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Commercial Taxes Officer Vs. Western Indian States Motors - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtRajasthan High Court
Decided On
Case Number D.B.C.S.T. Reference Application No. 179 of 1980
Judge
Reported in[1987]67STC257(Raj)
AppellantCommercial Taxes Officer
RespondentWestern Indian States Motors
Appellant Advocate G.S. Bapna, Adv.
Respondent Advocate V.K. Singhal, Adv.
DispositionPetition dismissed
Excerpt:
.....of the act, only stated that the following question of law arising out of the order passed by the division bench of the board of revenue :whether, under the facts and circumstances of the case, interest under section 11-b is leviable only for completed months of default or even part of the month ? 3. as a period of 180 days expired from the date of filing of the application under section 16(1) of the act, as it stood at the relevant time, and as the board failed to pass any order in respect thereof, the cto filed an application under section 15(3-a) of the act, on 19th october, 1979, before this court, praying that the board of revenue may be directed to state the case and refer the aforesaid question of law arising out of the order of the division bench of the board of revenue dated.....dwarka prasad, j.1. the question which was raised before the learned single member of the board of revenue in the revision petition, was as to whether interest under section 11-b of the rajasthan sales tax act, 1954 (for short, 'the act' hereinafter) could be levied only in respect of the completed months or also in respect of part of a month in relation to the period for which the assessee was in default in payment of tax under the act. the learned single member of the board of revenue held that while calculating the amount of interest payable by the assessee under section 11-b of the act only completed months have to be taken into account while portions of the month should be excluded. however, after arriving at the aforesaid finding, the learned single member of the board of revenue.....
Judgment:

Dwarka Prasad, J.

1. The question which was raised before the learned Single Member of the Board of Revenue in the revision petition, was as to whether interest under Section 11-B of the Rajasthan Sales Tax Act, 1954 (for short, 'the Act' hereinafter) could be levied only in respect of the completed months or also in respect of part of a month in relation to the period for which the assessee was in default in payment of tax under the Act. The learned Single Member of the Board of Revenue held that while calculating the amount of interest payable by the assessee under Section 11-B of the Act only completed months have to be taken into account while portions of the month should be excluded. However, after arriving at the aforesaid finding, the learned Single Member of the Board of Revenue dismissed the revision petition filed by the assessee. The assessee then filed a special appeal before a Division Bench of the Board of Revenue, and the only question before the Division Bench was, as to whether the learned Single Member should have remanded the case to the assessing authority with a direction to recalculate the amount of interest in accordance with the finding arrived at by him, and thereafter proceed to recover the amount of interest found payable by the assessee. The department did not challenge the finding of the learned Single Member of the Board of Revenue before the Division Bench of the Board of Revenue, regarding the principle for calculation of interest under Section 11-B of the Act, as to whether part of a month should be excluded while calculating the quantum of interest payable by the assessee. The Division Bench of the Board of Revenue held that the request for remand made on behalf of the assessee, was reasonable; and the order passed by the learned Single Member of the Board of Revenue was, consequently, modified. The case was remanded to the assessing authority with the direction that the amount of interest payable by the assessee may be recalculated in accordance with the decision of the learned Single Member of the Board of Revenue and the provisions of the Act; and tax be recovered from the assessee according to such recalculation.

2. In the application filed by the Commercial Taxes Officer (for short, 'the CTO' hereinafter), before the Division Bench of the Board of Revenue under Section 15 of the Act, for making a reference to this Court, it was not stated on behalf of the department that any question about the true interpretation of the provisions of Section 11-B of the Act was raised on behalf of the department before the Division Bench of the Board of Revenue. The department in its application under Section 15 of the Act, only stated that the following question of law arising out of the order passed by the Division Bench of the Board of Revenue :

Whether, under the facts and circumstances of the case, interest under Section 11-B is leviable only for completed months of default or even part of the month ?

3. As a period of 180 days expired from the date of filing of the application under Section 16(1) of the Act, as it stood at the relevant time, and as the Board failed to pass any order in respect thereof, the CTO filed an application under Section 15(3-A) of the Act, on 19th October, 1979, before this Court, praying that the Board of Revenue may be directed to state the case and refer the aforesaid question of law arising out of the order of the Division Bench of the Board of Revenue dated 17th August, 1978, for its decision.

4. Under Sub-section (10) of Section 13 of the Rajasthan Sales Tax (Amendment) Act, 1984, this application filed under Sub-section (3-A) of Section 15 of the Act, shall be deemed to be an application for revision under Section 15(1) as substituted by the Amendment Act of 1984.

5. The learned counsel for the respondent-assessee raised a preliminary objection and submitted that the question of law which is sought to be raised by the department before this Court, does not arise out of the order passed by the Division Bench of the Board of Revenue, as no such question relating to the calculation of the period for which interest was payable by the assessee was raised before the Division Bench of the Board of Revenue. The learned counsel drew our attention to the fact that the Division Bench of the Board of Revenue pointedly observed that the only question which arose for their consideration was as to whether in view of the finding arrived at by the learned Single Member of the Board, the matter should be remanded to the assessing authority with the direction to recalculate the amount of interest payable by the assessee. Although before the learned Single Member of the Board of Revenue, question about the true interpretation of Section 11-B of the Act, arose for consideration, and the learned Single Member held that interest could be calculated under Section 11-B of the Act only in respect of the period during which the non-payment of tax continued, but not in respect of the portions of a month. However, in appeal filed by the assessee before the Division Bench of the Board of Revenue, it was open for the department to raise a question about the correct method of calculating the quantum of interest to be levied against the assessee, but no such question appears to have been raised, although the finding of the learned Single Member of the Board of Revenue was that portion of a month should be ignored while calculating the amount of interest payable by the assessee for committing default in making payment of tax at proper time. No such question was raised before the Division Bench of the Board of Revenue. The Board did not proceed to decide the question which is now sought to be raised on behalf of the department before us. It is, therefore, clear from a perusal of the order passed by the Division Bench of the Board of Revenue that the question which is now sought to be raised before us, was not raised before the Division Bench of the Board of Revenue, nor was it decided by it, and so it cannot be said to arise out of the order of the Division Bench of the Board of Revenue.

6. We, therefore, uphold the preliminary objection raised by the learned counsel for the respondent-assessee, and as no such question was raised before the Division Bench of the Board of Revenue, we are unable to allow the department to raise such a question before this Court under the amended provisions of Section 16 of the Act.

7. The reference application, having been treated as revision petition, is accordingly dismissed, but with no order as to costs.


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