1970 (2) TMI 94 - HC - VAT and Sales Tax

Summary

Issues:
1. Interpretation of the expression 'the order' in Form XVI under rule 48
2. Applicability of the principle from a previous High Court decision to the current case
3. Application of section 12 of the Limitation Act in appeals under the Orissa Sales Tax Act, 1947

Analysis:

1. The main issue in this case revolves around whether an appeal can be filed based on a certified copy of the order of assessment or only on the copy received from the department. Section 23(1) of the Orissa Sales Tax Act provides the right to appeal within thirty days of receiving the order. The confusion arises from the lack of clarity in the language used in the Act and the Rules regarding which type of copy the appeal should be based on. The Court emphasizes that when statutory provisions affect parties' rights, the language must be explicit and unambiguous to avoid ambiguity.

2. The Court delves into the provisions of the Act and the Rules to highlight that there is no explicit requirement that an appeal must be filed solely based on the copy of the departmental order of assessment provided free to the dealer. The Court argues that the intention may lean towards filing the appeal based on this copy, but the absence of a clear provision favoring this interpretation leads to the benefit being granted to the subject in case of ambiguity.

3. Another significant aspect addressed is the application of section 12 of the Limitation Act concerning the exclusion of the period necessary for obtaining a copy from the limitation period. The Court refers to a previous decision and upholds that section 12 of the old Limitation Act is applicable to proceedings before appellate authorities under the Sales Tax Act. It concludes that the dealer is entitled to the benefit of section 12 in excluding the time taken to obtain a copy from the limitation period.

4. The Court ultimately rules that an aggrieved dealer can file an appeal within thirty days of receiving the certified copy of the order, along with the copy received from the department. It clarifies that the limitation period starts from the date the assessee first receives either the free copy or the certified copy, whichever is earlier. Additionally, it addresses scenarios where the departmental copy is lost, ensuring that the appeal process is not hindered unreasonably due to such circumstances.

5. In conclusion, the Court answers the referred questions affirmatively, stating that the expression 'order' in Form XVI includes a certified copy, the previous legal principle applies to the current case, and section 12 of the old Limitation Act is applicable in cases involving the necessity of a certified copy for filing an appeal. The reference is accepted, and no costs are imposed, with the refund of the reference fee to the petitioner.