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Assistant Commercial Taxes Officer Vs. Kanak Brothers - Court Judgment

LegalCrystal Citation
SubjectSales Tax/VAT
CourtRajasthan High Court
Decided On
Case NumberD.B. Sales Tax Reference Application Nos. 106 and 107 of 1972
Judge
Reported in1972WLN882
AppellantAssistant Commercial Taxes Officer
RespondentKanak Brothers
DispositionApplication dismissed
Cases ReferredMessrs. Motilal & Co. v. The Board of Revenue
Excerpt:
.....appellate court and dismissed the revision application of the state. this was by the order of the revenue board dated 29.1.1971. the assenting authority feeling dis-satisfied made an application on 24,6,1971 praying that the question of law, which arose in the circumstances of the case, may be referred to this court for opinion. it has been stated by the learned additional advocate general at the bar that net having been heard from the board of revenue an application for the certified copies of (a) the application for making a reference and (b) the order, if any, thereon, was made on 11.1.1972. on 20.4.1972 the assessing authority was furnished with a certified copy of the order dated 18.2.1972 where in the board of revenue observed that because it failed to make an order within 180..........namely the assistant commercial taxes officer, ward iv, jodhpur, made an application before the revenue board under section 15 of the act and prayed that the question of law which arose in the case namely, 'whether the turnover of rs. 14,465 63 between 10.12.1962 to 1.3.63 and the turnover of rs 2,288 05 between 2.3.63 to 31.3.63 is taxable at 7% and 10% respectively or this whole is taxable at the general rate?' be referred to this court for answer.3. the learned additional advocate general has stated at the bar that having heard nothing from the board of revenue the assessing authority made an application on 11th january, 1972 asking for certified copies of (a) the application for making a reference and (b) the order passed thereon, and it was on the 20th of april, 1972 that the.....
Judgment:

B.P. Beri, J.

1. Those two applications under Section 15 (3A) of the Rajasthan Sales Tax Act (hereinafter called 'the Act') are made to this Court for requiring the Board of Revenue to refer an identical question, though for different assessment periods, for an answer. We are disposing them together.

Application No. 106/72:

2. M/s. Kanak Brothers, Mehta Market, Jodhpur, is a registered dealer under the Act and carries on the business of sale of confectionery, biscuits, etc. in Mehta Market, Jodhpur. It is a registered partnership. For the accounting period between 1.4.62 to 31.3.63 the dealer war assessed by the Commercial taxes Officer, Jodhpur. The dealer preferred an appeal and the Deputy Commissioner, Commercial Taxes (Appeals), Udaipur by its order dated 25.7 1966 accepted the appeal holding that the articles sold by the assessee were not eatables as defined in the higher rate classification but were chargeable at general rate. The appeal was accordingly accepted and the assessment of the Commercial Taxes Officer was modified, Dis-satisfied the State of Rajasthan preferred a revision application before the Board of Revenue for Rajasthan at Ajmer, which by its order dated 29th January, 1971 affirmed the finding of the appellate court and dismissed the revision application of the State. On 24.6.1971 the Assessing Authority, namely the Assistant Commercial Taxes Officer, Ward IV, Jodhpur, made an application before the Revenue Board under Section 15 of the Act and prayed that the question of law which arose in the case namely, 'Whether the turnover of Rs. 14,465 63 between 10.12.1962 to 1.3.63 and the turnover of Rs 2,288 05 between 2.3.63 to 31.3.63 is taxable at 7% and 10% respectively or this whole is taxable at the general rate?' be referred to this Court for answer.

3. The learned Additional Advocate General has stated at the Bar that having heard nothing from the Board of Revenue the Assessing Authority made an application on 11th January, 1972 asking for certified copies of (a) the application for making a reference and (b) the order passed thereon, and it was on the 20th of April, 1972 that the Assessing Authority received the certified copy of the order of the Board dated 18.2.72 to the effect that as the application for reference had not been disposed of in 180 days, it may be filed. An application was presented to this Court under Section 15(3A) of the Act requesting that we may require the Board of Revenue to refer the question of law as already indicated.

Application No. 107/72:

4. The same dealer as in sales-tax Reference Application No. 106 of 1972 was taxed, by the Commercial Taxes Officer, Jodhpur, for the period between 1.4.63 to 31.3.64 by way of re-assessment at the higher rate. It preferred an appeal which was dismissed by the Deputy Commissioner, Commercial Taxes (Appeal) on 28.10 1968. Dissatisfied the assessee preferred a revision application before the Board of Revenue, Rajasthan and the contention of the assessee was accepted that the turn-over of the assessee should be charged at the general rate and not at the higher rate. This was by the order of the Revenue Board dated 29.1.1971. The Assenting Authority feeling dis-satisfied made an application on 24,6,1971 praying that the question of law, which arose in the circumstances of the case, may be referred to this Court for opinion. It has been stated by the learned Additional Advocate General at the Bar that net having been heard from the Board of Revenue an application for the certified copies of (a) the application for making a reference and (b) the order, if any, thereon, was made on 11.1.1972. On 20.4.1972 the Assessing Authority was furnished with a certified copy of the order dated 18.2.1972 where in the Board of Revenue observed that because it failed to make an order within 180 days the papers be filed. The Assistant Commercial Taxes Officer, Circle A, Jodhpur, made an application in this Court under Section 15(3A) on 29. 4. 1972 praying that the question 'whether the turn-over of RSection 70,452.52 is taxable at 10% or at general rate?' the Board of Revenue may be required to refer this Court.

5. On behalf of the assessee a preliminary objection has been raised in both the cases that the applications under Section 15(3A) are barred by time and should be dismissed. The scheme of Section 15 of the Act is that within 120 days from the date of communication by the Board of Revenue of the order passed under Section 14 either the dealer or the assessing authority may by application in writing, accompanied where the application is made by the dealer, by a fee of Rs. 100/-require the Board of Revenue to refer to the High Court any question of law arising out of such order and subject to the other provisions contained in this section, the Board of Revenue shall within 180 days of the receipt of such application, draw a statement of the case & refer it to the High Court. Sub-section(2)of Section 15 provides that if for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the applicant may, within 60days of such refusal either withdraw his application or apply to the High Court against such refusal. Under Sub-section (3), if upon the receipt of the application under Clause (b) of Sub-section (2) the High Court is not satisfied that such refusal was justified, it may require the Board of Revenue to state a case and refer it to the High Court and on receipt of such requisition, the Board of Revenue shall state and refer the case accordingly. The provision, which is crucial for our purposes, is Sub-section (3A) which reads as follows:

(3A) If the Board has failed to dispose of the application under Sub-section (1) within the time prescribed therefor in that sub-section, it shall not thereafter pass any order on that application and the applicant may, within sixty days from the expiration of the time prescribed in Sub-section (1), apply to the High Court; and if the High Court is satisfied that prima facie the case is fit one for making the reference, it may require the Board of Rev to state and refer it to the High Court and on receipt of such requisition the Board of Revenue shall state and refer the case to the High Court. If the applicant does not apply to the High Court within the said period of sixty days, his application under Sub-section (1) shall be deemed to have been withdrawn.

6. Two limitations are imposed by this sub-section. The first is that if the Board has failed to dispose of the application under Sub-section (1) within, time namely, 180 days 'it shall not thereafter pass any order on that application'. This clause deprives the Board of the power to deal with the application if it has neglected to determine it within 180 days. The reason presumably is that there may possibly be conflict of orders if this power remained with the Board indefinitely. And the second restriction contained in this sub section, which is no less important, is that if the applicant does not apply to the High Court within the said period of sixty days after the expiry of 180 days 'his application under Sub-section (1) shall be deemed to have been withdrawn'. This limitation also provides a dead line date for the aggrieved party to move the High Court and in the event of its failing to do. so the controversy is set at rest by the legal fiction that the application will be deemed to have been withdrawn. In our opinion, the entire scheme of Section 15 is a self-contained and time-bound mechanism provided by the Legislature for making reference of legal questions to this Court. No departure evidently is permitted from these time limits.

7. In both the cases before us the application under Section 15(1) was moved on 24.6.71 Learned Counsel for the dealer has urged that there were several dates fixed before the Board of Revenue and the department's representative participated. Be that as it may at least on the 18th February, 1972 when the learned members of the Board of Revenue declined to exercise their powers under Section 15 of the Act because 180 days had already passed, it will be reasonable to infer that the Assessing Authority had information of such an order. The correct period of limitation in the circumstances of the case as envisaged by Section 15 is that the application for reference was made on 24.6.1971, and its 180 days expired on21.12.1971. An application ought to have been made to this Court within 60 days thereafter, namely, on or before 19.2.1972 Both the applications before us were presented on 29.4.1972. They are clearly barred by time.

8. Learned Additional Advocate General invited our attention to a decision of this Court in Messrs. Motilal & Co. v. The Board of Revenue for Rajasthan and Ors. (D.B. Civil Sales Tax Reference Application No. 1 of 1968) decided on 18th 1969, where the learned Judges of this Court while dealing with the question of limitation on behalf of the petitioner whether the time consumed in obtaining the certified copy of the order of the Board of Revenue was to be excluded for the purposes of making computation for limitation. They observed that 'Even if such a copy was not filed along with the application in this Court, obtaining of such a copy was a necessity in order to enable the petitioner or its counsel to file of not to file an application in this Court.' Then they further observed that 'it cannot be said there was no sufficient cause for the petitioner for not filing the application till it obtained the authenticated copy.' These observations are distinguishable for two reasons. One is that for the purposes of the controversy that was before the learned Judges Section 16(3A) had not come into force and the two clauses which we have noticed earlier did hot regulate the time limit as provided by Section 15(3A) had not come into force and the two clauses which we have noticed earlier did not regulate the time limit as provided by Section 15(3A). The unamended Section 15, as was applicable to that case, was different from the one with which we are concerned. The other is that knowledge in the case before us was directly attributable to the petitioner because its representative participated in the proceedings and was present on 18.2.1972 when the order was passed by the Board of Revenue.

9. Learned Additional Advocate General at the end of the arguments sought time to file an application under Section 5 of the Limitation Act. It is indeed a belated application and we decline to entertain it.

10. The result is that both the applications are barred by time and they are dismissed. There will be no order as to costs.


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