1954 (4) TMI 45 - HC - VAT and Sales Tax

Issues Involved:
1. Jurisdiction of the Board of Revenue to make a reference.
2. Justification of the Board of Revenue's refusal to make a reference based on limitation.
3. Interpretation of the expression "passing of the order".
4. Applicability of section 12(2) of the Limitation Act to the Sales Tax Act.
5. Validity and legality of the order dated 1st March 1948.
6. Power of review under section 22(6) of the Sales Tax Act.
7. Preclusion of consideration of questions due to failure to appeal.

Detailed Analysis:

1. Jurisdiction of the Board of Revenue to Make a Reference:
The court held that it has the jurisdiction to require the Board to make a reference if it is not satisfied that the refusal was justified. The Board of Revenue's refusal to state the case was justified if the application for reference was barred by time.

2. Justification of the Board of Revenue's Refusal to Make a Reference Based on Limitation:
The court found that the order of the Board of Revenue rejecting the application as barred by time was not justified. The limitation period should not deprive the party aggrieved of his remedies. The Board of Revenue's interpretation that the limitation expired on the 9th May 1952, without fixing a date for delivery or giving notice to the parties, was deemed unsupportable.

3. Interpretation of the Expression "Passing of the Order":
The court emphasized that "passing of the order" should not defeat the right of appeal for an assessee. The date of passing such an order is the date on which the order is passed in the presence of parties or when the order is reserved and not signed and delivered on a date fixed for passing the order, of which due notice is given to the parties. The date on which a copy is received by the assessee is also considered.

4. Applicability of Section 12(2) of the Limitation Act to the Sales Tax Act:
The court held that section 12(2) of the Limitation Act, which applies to appeals, applications for leave to appeal, and applications for review of judgments, does not apply to an application to the Board of Revenue under section 23(1) of the Sales Tax Act. The court distinguished the decisions relied upon by the applicant's counsel and found them not applicable to the present case.

5. Validity and Legality of the Order Dated 1st March 1948:
The court considered whether the order dated 1st March 1948, was passed in exercise of the power of review under section 22(6) and whether the authority had the power to review the order of the Sales Tax Officer granting a registration certificate. The court found that these questions of law do arise out of the order dated 10th March 1952.

6. Power of Review Under Section 22(6) of the Sales Tax Act:
The court noted that section 22(6) empowers any person appointed under section 3 to review any order passed by him. The Assistant Commissioner of Sales Tax had no jurisdiction to pass the order dated 1st March 1948, reviewing the order of the Sales Tax Officer granting the certificate and canceling that certificate. This important question of law was not considered by the Board of Revenue.

7. Preclusion of Consideration of Questions Due to Failure to Appeal:
The court held that the applicant's failure to appeal against the order dated 1st March 1948, does not preclude the consideration of the questions of law arising from that order. The court directed the Board of Revenue to state the case and refer the questions of law arising out of the order dated 10th March 1952.

Conclusion:
The application was allowed, and the court directed the Board of Revenue to state the case and refer the questions of law arising out of the order dated 10th March 1952. The court emphasized the need for a fair interpretation of the limitation period and the right of appeal for the assessee. The application succeeded with costs awarded to the applicant.

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