1955 (8) TMI 34 - HC - VAT and Sales Tax

Summary

Issues:
- Competency of the application under sub-section (2) of section 25 of the Bihar Sales Tax Act, 1947.
- Interpretation of the amended sub-section (1) of section 25 and its application to the case.
- Right of the State of Bihar to make an application under sub-section (2) of section 25.
- Request for an amendment to substitute the Commissioner of Sales Tax in place of the State of Bihar in the application.

Analysis:
The judgment delivered by the High Court of Patna pertains to an application made by the State of Bihar under sub-section (2) of section 25 of the Bihar Sales Tax Act, 1947. The preliminary objection raised by Mr. Kanhaiyaji, representing the opposite party, questioned the competency of the application based on the amendment to sub-section (1) of section 25. The contention was that prior to the amendment, only the dealer had the right to make such an application. However, the Court held that the amendment allowed the Commissioner to also make an application, and since the order in question was passed after the amendment, the objection was overruled. This decision was supported by a precedent set in a previous case.

Furthermore, the Court delved into the interpretation of sub-sections (1) and (2) of section 25 post-amendment. It was clarified that both the dealer and the Commissioner have the right to apply under sub-section (1) and subsequently to the High Court under sub-section (2) in case of a refusal by the Board to refer any question of law. The State of Bihar, as distinct from the Commissioner, was found not to have the right to make an application under sub-section (2) of section 25, as per the defined terms in the Bihar Sales Tax Act.

Regarding the request for an amendment to substitute the Commissioner of Sales Tax in place of the State of Bihar in the application, the Court rejected the notion of misdescription, emphasizing the clear distinction between the State of Bihar and the Commissioner. Additionally, the Court declined the amendment due to the lapse of the prescribed time limit for such actions.

In conclusion, the Court held the application by the State of Bihar as incompetent and not maintainable, leading to its dismissal. The judgment was concurred by Justice Kanhaiya Singh, resulting in the application being dismissed without any order for costs.