M.L. Joshi, Actg. C.J.
1. This is an application under Section 15(3-A) of the Rajasthan Sales Tax Act, 1954, hereinafter called the Act, praying for directing the Board of Revenue, Rajasthan, hereinafter called the Board, to make a reference on the following questions of law:
Whether 'Durri' is textile within the meaning of item No. 3 of notification No. F. 5(48) ET/ST dated 1-7-58.
(2) Whether by issue of notification No. F. 5(48) ET/ST dated 1-7-1958 the insertion of the words including tape, 'niwar' enlarges the scope of exemption given in notification dated 14 12-57.
2. The fact giving rise to this reference, briefly stated are as under : The non petitioner No. 1 was assessed under the Sales Tax Act for the period 11 11-58 to 31-10-59, 1-11-59 to 20-10-1960 and 21-10-1960 to 7-11-61 by the Sales Tax Officer Jodhpur City, who was the assessing Authority The non petitioner amongst others deal in 'Durries'. The petitioner levied sales tax on the turnover in respect of Durries for the aforesaid periods. The non-petitioner No. 1 felt aggrieved by the orders of the assessment passed on March 15, 1965 and March 5, 1964 for the above three periods appealed before the Deputy Commissioner, Commercial Taxes (Appeals), Jodhpur, hereinafter called the Deputy Commissioner, against the levy of tax on Durries. The Deputy Commissioner accepted the appeals of the non-petitioner No. 1 and reversed the order of assessment for the said periods by his single order dated February 23, 1965, whereby he held that the 'Durri' being a variety of textiles was not chargeable to sales tax. The petitioner challenged the order of the Deputy Commissioner by way of revision before the Board of Revenue. The Board of Revenue vide its order dated July 3, 1973, upheld the order of the Deputy Commissioner,
3. The petitioner, thereupon, moved the Board of Revenue under Section 15(1) of the Act for making a reference to this Court on February 23, 1974 for its answer to the questions mentioned above. The reference application came up before the Board of Revenue on April 19, 1974 but the same was dismissed for non-presence of the petitioner. The petitioner thereupon filed restoration application before the Board of Revenue on May 18, 1974. In the meantime, during the pendency of the restoration application, the petitioner moved this Court under Section 15(3-A) on October 22, 1974 for directing the Board to state the case and refer the questions referred to in the application to this Court. It may be pointed out here that during the pendency of the application under Section 15(3-A) the application for reference under Section 15(1) was restored by the Board as the reference was not disposed of within 180 days, as required by Section 15(1) of the Act.
4. Mr. Hastimal, the learned Counsel for the non-petitioner No. 1 does not dispute that question of law, as mentioned above, do arise out of the order of the Board. He, however, contended that the application under Section 15(3-A) could not lie as the application for reference was not pending when the application under Section 15(3-A) was made before this Court.
5. On the other hand, Mr. S.C. Bhandari, learned Counsel for the petitioner has contested the contention raised by Mr. Hastimal. His contention is that the application for reference was dismissed in default illegally as there was no provision of dismissal of the application for reference for non prosecution. The Board had not refused to make reference as envisaged under Sub-section (2) of Section 15 as the application was merely dismissed in default which was subsequently restored. It has been said that there being no provision for dismissal in default in regard to the application of reference under Section 15(1) of the Act, the order of dismissal for default was non est and should be ignored for all purposes and the application should be deemed to be pending more particularly when the application for restoration had already been made in time and has been restored subsequently.
6. It may be said at the out-set that there is no dispute between the parties that the questions of law do arise as stated in the reference application out of the order of the Board. Therefore, this point need not detain us any longer.
7. The important question however calls for our determination is whether the application is maintainable under Section 15(3-A) of the Act. In this connection, it will be useful to read Section 15(1), (2) and (3-A) of the Act. They read as under:
15. Statement of case to the High Court:
(1) Within one hundred and twenty days from the date of communication in writing by the Board of Revenue of the order passed under Section 14, the dealer or the assessing authority may, by application in writing, accompanied where the application is made by the dealer, by a fee of rupees one hundred, 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 Re venue shall, within one hundred and eighty days of the receipt of such application, draw up a statement of the case and refer it to the High Court.
(2) If, for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the applicant may, within sixty days of the communication in writing of such refusal, either-
(a) withdraw his application (and if he does so, the fee shall be refunded); or
(b) apply to the High Court against such refusal.
(3-A) If the Board has failed to dispose of the application under Sub-section (1) within the time prescribed there for in that Sub-section, it shall not thereafter pass any order on the application and the applicant may, within sixty days from the expiration of the time prescribed in Sub-section (2), apply to the High Court; and if the High Court is satisfied that prima facie the case is a fit one for making the reference, it may require the Board of Revenue to state the case 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 with drawn.
8. We now proceed to analyse relevant provisions of Section 15 which are necessary for our purposes Under Sub-section (1) of Section 15, aggrieved party may move the application in writing along with a fee of Rs. 100/- and require the Board of Revenue to refer to the High Court questions of law arising out of such order. The Board is enjoined upon under this Sub-section to dispose of the application within 180 days of the receipt of such application and draw the statement of the case and refer it to the High Court. Sub-section (2) lays down that in case the Board refuses to make such reference as envisaged under Sub-section (1), the aggrieved party may, within 60 days of the communication in writing of such refusal apply to the High Court against such refusal Sub-section (3-A) prohibits the Board to dispose of the application under Sub-section (1) if it has not disposed of the same within the time prescribed under Sub-section (1) of Section 15. In that case, the remedy of the aggrieved party is to approach directly to the High Court without securing an order of refusal on the reference application.
9. The principal question which therefore calls for our consideration is whether the petitioner could move an application under Sub-section (3-A) of Section 15 of the Act Sub-section (2) empowers the Board to refuse to make reference after recording the reasons. There is no provision for dismissing the application for reference. If the Board intended to dispose of the application under Section 15(1) then it was incumbent upon the Board to dispose of that application in accordance with the mode provided in Sub-section (2) of Section 15. Sub-section (2) of Section 15 of the Act clearly enjoins upon the Board to record the reasons in writing if at all it chooses to refuse to make a reference but it could not dismiss the application in default. Admittedly, the Board did not dispose of the application as required by Sub-section (2) of Section 15. Obviously the Board had not refused to make reference as contemplated under Sub-section (1) of the Act. It had simply dismissed the application in default which is not at all permissible under the provisions of the Act or the Rules framed there under. The scheme of the provisions of the Sales Tax Act relating to the disposal of application for reference is that it has to dispose of the reference application be making order after re cording reasons in writing. In no event, the Board could reject the application for reference in default. Rule 41 of course makes provision for dismissal for default of an application for appeal or application for revision or special appeal but there is no such provision in regard to the application for reference. Even if there would have been any such provision its validity would have been open to question on the ground of its repugnancy to the main provisions of Section 15, which requires reasons to be recorded in writing for refusal of the reference application. It may be pointed out here that reference application was restored on May 2, 1975 which order shall relate back from the date of dismissal of the application and therefore, too the application for reference shall be deemed to be pending. In this view of the matter, there is hardly any substance in the contention of the learned Counsel for the non-petitioner that the application under Section 15(3-A) was not maintainable It clearly follows from the language of Section 15(2) and particularly the use of the words for the reasons to be recorded in writing that the Board has to go into correctness or otherwise of the points decided by the Departmental Authority. The provisions contained in Section 15(1) about making a reference on a question of law to the High Court will be rather rendered nugatory if any such power is attributed to the Board, by which it can dismiss the application for reference in default which has otherwise been properly filed without making order thereon in accordance with Section 15(2) of the Act. The reason is obvious. The jurisdiction of the High Court is purely advisory in character and is not an appellate or revisions jurisdiction. The advisory jurisdiction can be exercised on a proper application being made under Section 15(1). It can also be invoked under Section 15(3-A) if the application for reference is not disposed of within 180 days from the receipt of application under Section 15(1). The Board in the disregard of provision of Section 15(2) without recording reasons in writing dismissed the application for reference for non-presence of the petitioner, which was wholly without jurisdiction. Such an order is non-est in the eye of law. However, in the instant case the application for restoration was made and the order dismissing the application having been recalled the irresistible conclusion is that the application shall be deemed to be pending till the application under Section 15(3-A) was made by the petitioner. The Board had obviously not disposed of the reference application within 180 days the time prescribed in Section 15(1) The petitioner, therefore, had every right to move the application under Section 15(3-A) in the facts and circumstances of this case.
10. In view of the foregoing discussion, the application under Section 15(3-A) is accepted. The Board is directed to state the case to this Court for its answer on the following question:
(1) Whether 'Durri' is textile within the meaning of item No. 3 of the notification No. F. 5(48)ET/ST dated 1-7-58.
(2) Whether by issue of notification No. 5(48)ET/ST dated 1-7-58 the insertion of the words including tape, Niwar enlarges the scope of exemption given in notification dated 14-13-57?
11. In the facts and circumstances of the case, the parties are left to bear their own costs.