Patna High Court
Doma Sao Kishun Lal vs State Of Bihar on 6 February, 1952
Equivalent citations: AIR1952PAT357, 1953(1)BLJR196, AIR 1952 PATNA 357
JUDGMENT Ramaswami, J.
1. This reference is made by the Board of Revenue under Section 21 (1) of the Bihar Sales Tax Act, 1944.
2. The petitioner Doma Sao Kishun Lal was assessed to sales-tax for six quarters, that is, quarters ending 31st December 1945, 31st March 1946, 30th June 1946, 30th September 1946, 31st December 1946 and 31st March 1947. The assessment order was made on 18th December 1947. A revision petition was filed on behalf of the Department before the Commissioner of Sales Tax, Patna, on the ground (1) that the Sales-tax Officer had not examined the books properly and (2) he had reduced the figure of gross-turnover as compared with the figures for the previous quarters. The Commissioner came to frie" conclusion that the assessment order was not satisfactory and that the figures of the gross-tturnover were based on mere surmise. The Commissioner accordingly set aside the order and remanded the case for a fresh assessment to be made by the Deputy Commissioner of Sales Tax himself.
The assessee moved the Board of Revenue against the order of the Commissioner but the petition was rejected. On 18th August 1949 the assessee filed six applications before the Board of Revenue for referring the case to High Court on certain questions of law. ~ It was objected on behalf of the State of Bihar that the petitions were tame barred. But the petitioner alleged that though the orders were passed by the Board of Revenue on 15th May 1949 he was not apprised of the , same. On 2nd June 1949 he filed an application for copies which he obtained only on 18th June 1949. It was argued that the time for obtaining copies should be excluded from the period fixed by the statute. After hearing the parties the Board of Revenue made the present reference without deciding the point whether the objection raised by the State of Bihar was valid or not.
3. In this Court the preliminary question argued is whether the reference is incompetent and whether the Board of Revenue has jurisdiction to make it. Learned Government Advocate pointed out that the Board of Revenue was erroneous to think that the petitioner could make the application within 90 days from the date of the order. It was argued that under Section 21 of the Sales Tax Act, 1944, the assessee was required to make an application within 60 days from the passing by the Board of Revenue of any order under Sub-section (3) of Section 20 affecting the liability of the assessee. The Board of Revenue considered that Section 25 of the 'Sales Tax Act of 1947 applied to the case.
But this opinion is incorrect. For Section 32 of the Bihar Sales Tax Act of 1947 while repealing Bihar Sales Tax Act, 1944, provides that nothing in the repeal shall affect any liability to pay tax incurred before the date of such appeal and proceedings pending on the said date, as also all proceedings initiated after the commencement of this Act but relating to any such liability as aforesaid shall be ' continued and disposed of or initiated and disposed of, as the case may be as if the Act of 1947, had not been passed. It is manifest therefore that Section 21 of the Act of 1944 applies to this case and that the petitioner was bound to make an application to the Board of Revenue within 60 days from the passing of the order.
4. On behalf of the assessee Mr. Dutta stressed the argument that though the Board of Revenue had passed order on 15th May, 1949 the assessee had no information till the end of the month. As soon as he came to know about the order the assessee filed an application for copy on 2nd June, 1949, and copy was supplied only on 18th June, 1949. It was maintained that the time for obtaining copy should be excluded from the period of limitation. It is not possible to accept this argument. There is no provision in the Sales Tax Act for excluding the time requisite for obtaining copies. from the period prescribed. But Section 67 A of the Income Tax Act states that in computing period of limitation the time requisite for obtaining copy of the order shall be excluded. Section 66(7A) of the Income Tax Act also states that Section 5 of the Indian Limitation Act shall apply to an application to the High Court by an assessee under Sub-section (2) or Sub-section (3). There are no corresponding provisions in the Sales Tax Act of 1944.
The omission is striking and it is therefore not possible to extend the period prescribed in Section 21 for any equitable reason. In a taxing Act, one has only to look at what is clearly said, and there is no room for any intendment. It is not open to the Court to entertain any argument that hardship would be caused. To adopt the language of Lord Cairns "If there be admissible in any statute what is called an equitable construction, certainly such a construction is not admissible in a taxing statute where you should simply adhere to the words of the statute: 'PARTINGTON v. ATTORNEY GENERAL', (1869) LR 4 HL 100."
It is plain that in computing period of limitation the time requisite for obtaining copy cannot be excluded.
5. On behalf of the petitioner it was contended that when a case has been stated by the Board of Revenue the High Court cannot consider whether reference is competent or not. It was urged that the High Court has no alternative other than to express its opinion on the question contained in the reference. In my opinion this argument is not correct. If the Board of Revenue improperly makes reference in violation of the provision of the Statute the High Court is certainly capable of entertaining objection to the statement of the case and if it comes to the conclusion that the case should never have been stated the High Court is not compelled to express its opinion upon the questions referred.
6. The question must, therefore, be determined whether the reference made by the Board of Revenue is incompetent. It was contended for the petitioner that even if the application was made beyond the time fixed the reference was not incompetent. It was maintained that the condition imposed was in the nature of a mere direction, the neglect of which did not affect the validity pf the reference. In my opinion this argument is not acceptable. If the scope and context of the Act is considered it is clear that the time prescribed by Section 21 is an essential condition pre-requisite for. making the reference and the omission bo make the reference within the time prescribed is fatal to the validity of the reference. It is obvious that in dealing with a reference under Section 21 the High Court does not act in exercise either of its original or appellate jurisdiction. But the High Court acquires special jurisdiction to deal with the case by virtue of the express provision of the Bihar Sales Tax Act. Now the principle is: that when a statute confers special jurisdiction upon a Tribunal the conditions and qualifications annexed to the grant must be strictly complied with. It would not be competent to a tribunal to dispense with what the Legislature had made the indispensable foundation for its jurisdiction. It follows that in the present case, the High Court cannot acquire special jurisdiction to deal with the reference unless the preliminary conditions are strictly complied with. I am of opinion that the preliminary conditions imposed by Section 21 of the Act are mandatory and the reference made by the Board of Revenue in this case is without jurisdiction.
7. This view finds support from 'TRUSTEES CORPORATION (INDIA) LIMITED v. COMMISSIONER OF INCOME TAX, BOMBAY', 57 Ind App 152 in which Lord Blanesburgh said:
"Their Lordships are fully alive to the circumstances in which the High Court was considered to direct that these further questions should be referred to it for consideration, and the result in the present case of the order then made merely serves to confirm the view of the Board that the High Court, will, in future cases, be well advised to require, before they seek to entertain any questions under Section 66 of the Income Tax Act that the preliminary requirements of the section are strictly complied with. The stringency of these requirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications. The object is salutary and in their Lordships' judgment the High Court will be well advised before they entertain any question under the section, always to see that the preliminary statutory conditions have been fully observed."
8. For these reasons I hold that the reference made by Board of Revenue in this case is not competent and the High Court has no jurisdiction to hear the reference or answer the questions raised therein.
9. There will be no order as to costs, but the petitioner is not entitled to refund of the amount "of deposit.
Sarjoo Prosad, J.
10. I agree.