1953 (4) TMI 13 - HC - VAT and Sales Tax

Issues Involved:
1. Whether the judgment of the High Court on a reference by the Board of Revenue under the Central Provinces and Berar Sales Tax Act, 1947, amounts to "a judgment, decree or final order" within Articles 132 and 133 of the Constitution.
2. Whether an appeal lies against the judgment of the High Court on such a reference.
3. The interpretation of the term "judgment, decree or final order" in Articles 132 and 133 with reference to a decision under Section 23(5) of the Central Provinces and Berar Sales Tax Act, 1947.

Issue-wise Detailed Analysis:

1. Whether the judgment of the High Court on a reference by the Board of Revenue under the Central Provinces and Berar Sales Tax Act, 1947, amounts to "a judgment, decree or final order" within Articles 132 and 133 of the Constitution:

The court examined whether the decision of the High Court on a reference by the Board of Revenue under Section 23 of the Central Provinces and Berar Sales Tax Act, 1947, qualifies as a "judgment, decree or final order" as per Articles 132 and 133 of the Constitution. The court noted that the proceedings arise out of the collection of revenue and are primarily consultative, not civil in nature, and do not decide any dispute of a civil nature in the strict sense. Therefore, the judgment of the High Court does not fall within the expression "judgment, decree or final order" for the purposes of Article 133.

2. Whether an appeal lies against the judgment of the High Court on such a reference:

The court considered whether an appeal lies under Article 132(1) of the Constitution, which allows an appeal to the Supreme Court from any judgment, decree, or final order of a High Court if it involves a substantial question of law as to the interpretation of the Constitution. The court noted that the jurisdiction exercised by the High Court under Section 23(5) of the Sales Tax Act is advisory and consultative. The opinion given by the High Court is binding on the Board of Revenue but does not of its own force bind or affect the rights of the parties. Therefore, the judgment of the High Court on a reference is not a "final order" as it does not finally dispose of the rights of the parties.

3. The interpretation of the term "judgment, decree or final order" in Articles 132 and 133 with reference to a decision under Section 23(5) of the Central Provinces and Berar Sales Tax Act, 1947:

The court reviewed various precedents and legal principles to interpret the terms "judgment, decree or final order." It referred to the Federal Court's decision in Mohammad Amin Brothers, Ltd. v. Dominion of India, which held that an order must finally dispose of the rights of the parties to be considered a final order. The court also considered the explanation added to Article 132, which includes an order deciding an issue that, if decided in favor of the appellant, would be sufficient for the final disposal of the case. However, the court concluded that the advisory opinion given under Section 23(5) of the Sales Tax Act does not meet this criterion, as it is not sufficient to dispose of the whole case finally.

Separate Judgments Delivered:

Hidayatullah, J.:
Hidayatullah, J., emphasized that the proceedings under Section 23 of the Sales Tax Act are consultative and do not amount to a final judgment, decree, or order. He noted that the judgment of the High Court is not appealable under Article 133 as it is not a civil proceeding and does not fall within the expression "judgment, decree or final order." He also highlighted that the advisory opinion given by the High Court is not sufficient for the final disposal of the case and therefore does not qualify as a "final order" under Article 132.

Deo, J.:
Deo, J., concurred with the view that the proceedings under Section 23(5) of the Sales Tax Act are not civil proceedings and therefore not appealable under Article 133. However, he opined that the decision of the High Court under Section 23(5) is a "judgment" in revenue proceedings and involves a substantial question of law as to the interpretation of the Constitution. Consequently, he held that the applicant is entitled to a certificate under Article 132(1) of the Constitution, allowing the appeal to the Supreme Court.

Sen, J.:
Sen, J., agreed with Deo, J., and had nothing further to add.

Conclusion:
The application for leave to appeal to the Supreme Court was allowed based on the interpretation that the decision under Section 23(5) of the Sales Tax Act is a "judgment" involving a substantial question of law as to the interpretation of the Constitution, thus falling under Article 132(1).

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