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TMI Blog1950 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... against this order. The learned Assistant Commissioner dismissed it summarily without fixing any date for its hearing and without giving the petitioner any opportunity of being heard. In a brief order he stated that tobacco leaf was clearly taxable and that the appeal was long barred. The assessee then submitted a petition to the learned Commis- sioner of Taxes under Section 32(2) for a reference of three questions of law alleged to have arisen from the order of the learned Assistant Commis- sioner. The following were the questions on which reference to this Court was sought. 1.. Whether the sale of tobacco by the dealer, which is imported by him as tobacco for hucca, vide the permit issued by the Central Excise Department is taxable un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal cannot afford any basis for a reference. This petition is under Section 32, clause (5), of the Act. The ques- tions on which a requisition to the Commissioner is sought are as follows: "(1) Whether tobacco for hucca (leaf) is not taxable under the Assam Sales Tax Act? (2) Whether the procedure followed by the learned Assistant Commissioner of Taxes is not legal and proper and whether he was bound to fix a date for hearing? and (3) Whether the petitioners are protected under the proviso to Section 51 of the Assam Sales Tax Act?" The petitioner may ask for a requisition for reference if he can satisfy the Court that his application for reference was rejected on the ground that no questions of law arose in the case. Under clause (4) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application for reference was rejected as incompetent on the ground that there was at least in law no disposal of the appeal on the merits. When an application for reference is dismissed as incompetent, the case is not covered by Section 32, clause (5), and this Court has no jurisdiction to make a requisition for reference. Under clause (5) a reference may be demanded if the Commissioner holds that no question of law arises in the case. This is clear from the language of clause (5). If the application for reference is dismissed as time-barred, the assessee has got his remedy under clause (6) of Section 32. There is no remedy provided for a person whose petition for reference is dismissed as incompetent. It is now contended that the find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion that the view of the learned Commissioner that the appeal was barred by limitation is wrong, still remains. It is pointed out that the period of limitation for appeal could start running only from the date when the notice of demand was served on the petitioner under Section 33 of the Act. This contention, I am afraid, cannot be considered at this stage. The petition made to the Commissioner did not challenge the decision of the Assistant Commissioner on the question of limitation. All that was urged in the appeal was that the Assistant Commissioner before giving a decision on the merits should have given a hearing to the petitioner and should not have disposed of the appeal summarily. The decision in appeal was taken as a decision on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot commence till a notice of demand was served on him under Section 33 of the Act. In these circumstances it is fairly obvious that the finding of the learned Assistant Commissioner that the appeal itself was barred was not being questioned though one of the questions raised was that the appeal could not have been dismissed summarily on the merits. The question whether the appeal was rightly dismissed as time- barred or not was also not included in the list of questions which the petitioner desired to be referred to this Court. The learned Commis- sioner referred to the question of limitation with a view to showing that no reference at all could be made to the High Court, as the appeal to the Assistant Commissioner was apparently time-bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad been communicated to the petitioner on 21st February 1949 was not revoked expressly or by implication. The question of law that limitation should start from a date on which notice of demand was served on the petitioner also was conspicuous by its absence from the petition. In these circumstances the question of limitation cannot be considered to have been covered by question No. 2; nor can it be said that the Commissioner refused to refer it by implication. It must be conceded that the petitioner could raise this question by his petition as even the order dismissing the appeal on the ground that it was barred by limitation would be an order prejudicial to the petitioner within the meaning of clause (2) of Section 32. But, if the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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