1959 (9) TMI 36 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Validity of the assessment of the petitioner to sales tax.
2. Whether the petitioner's application is barred by limitation.
3. Whether the Deputy Commissioner could entertain a revision petition filed on behalf of the Department.
4. Whether the Sales Tax Superintendent was competent to file the revision application on behalf of the State.
5. Existence of an alternative remedy and its impact on the exercise of jurisdiction under Article 226.

Detailed Analysis:

1. Validity of the Assessment of the Petitioner to Sales Tax:
The petitioner was assessed to sales tax for the year 1951-52 by the Assistant Superintendent of Sales Tax, Monghyr. The Assistant Commissioner on appeal set aside the order of assessment. A revision petition was then filed by the Department before the Deputy Commissioner of Sales Tax, who admitted the application for revision and directed that the case be put up for hearing. The petitioner challenged this order, questioning whether the Deputy Commissioner could entertain a revision petition filed by the Department.

2. Whether the Petitioner's Application is Barred by Limitation:
The State of Bihar raised a preliminary objection that the petitioner's application was barred by limitation. The order of the Deputy Commissioner was passed on January 9, 1959, and the revision petition before the Board was filed on April 7, 1959. The petitioner argued that he became aware of the order only on January 30, 1959, and applied for a certified copy on February 17, 1959, which he received on March 13, 1959. However, it was noted that the copy was ready on March 4, 1959. The period of 60 days from January 30, 1959, would expire on March 31, 1959. The Court held that the time requisite for obtaining the copy should be excluded, and thus the petition was within time.

3. Whether the Deputy Commissioner Could Entertain a Revision Petition Filed on Behalf of the Department:
The Court examined whether there was any provision in the Bihar Sales Tax Act, 1947, preventing the Deputy Commissioner from entertaining a revision application filed by the State. The relevant provision, section 24 of the Act, did not limit the filing of revision applications to dealers only. The language of sub-section (4) of section 24 was broad enough to permit applications in revision by either a dealer or the State. Therefore, the Deputy Commissioner was not debarred from entertaining the revision application filed on behalf of the State.

4. Whether the Sales Tax Superintendent Was Competent to File the Revision Application on Behalf of the State:
The petitioner argued that the Sales Tax Superintendent was not an authority competent to file the revision application on behalf of the State. The Court dismissed this objection, stating that sub-section (4) of section 24 allowed the prescribed authority to revise any order upon application or suo motu. The revisional power could be invoked by any person, and it was unnecessary to question the propriety of the Superintendent moving the application, especially since he was expressly ordered to do so by the Commissioner.

5. Existence of an Alternative Remedy and Its Impact on the Exercise of Jurisdiction Under Article 226:
The State argued that the petitioner had an alternative remedy by way of a regular appeal before the Sales Tax Tribunal and that the Court should not exercise its extraordinary jurisdiction under Article 226. The Court noted that the Orissa Sales Tax Act, 1947, underwent several amendments, and an independent authority known as the Sales Tax Tribunal was constituted. The petitioner had a right to appeal to this Tribunal but failed to do so within the prescribed period. The Court emphasized that the existence of an alternative remedy might not always be a sufficient ground to refuse jurisdiction under Article 226. However, the petitioner should not be permitted to escape the effects of the law of limitation by applying to the Court after the expiry of the period prescribed by law. The Court concluded that the petitioner should have sought redress before the Tribunal and dismissed the application under Article 226.

Conclusion:
The petition was dismissed on the grounds that the petitioner had an alternative remedy and failed to avail himself of it within the prescribed period. The Court held that the Deputy Commissioner was competent to entertain the revision application filed by the State, and the Sales Tax Superintendent was authorized to file the application. The application was not barred by limitation, as the time requisite for obtaining the copy of the order was excluded. The Court declined to exercise its extraordinary jurisdiction under Article 226, directing the petitioner to seek redress before the Sales Tax Tribunal.