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TMI Blog1951 (3) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... atna Urban, for the dehydration factory at Digha Ghat, district Patna, for the period from 1st April, 1945, to 31st March, 1946, on a gross turnover of Rs. 39,25,106-9-0 and taxable turnover of Rs. 38,46,516-9-0. The tax imposed amounted to Rs. 60,101-13-0 plus penalty of Rs. 14,420-8-0. The assessment order is marked Exhibit A. A penalty also was imposed in view of the fact that the assessee dealer was unregistered and in the opinion of the assessing officers the omission was deliberate. The assessee then moved the Commissioner of Sales Tax, Patna Division, in appeal by a petition dated 6th February, 1948, (Exhibit B). The petition was dismissed by the learned Commissioner for default by order dated 29th April, 1948, (Exhibit C). The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een present to show how he was justified in asking for time. It cannot be conceded that the party was entitled to an adjournment as a matter of right, merely on the filing of a petition alleging certain reasons. Since the petition was not pressed or explained the Commis- sioner was right in dismissing it summarily. Hence it has to be held that the order of the Commissioner dismissing the appeal in default was within jurisdiction. S.N. Dutt and S.C. Sinha, for the assessee. Government Advocate, for the State of Bihar. JUDGMENT RAMASWAMI, J.-These cases are stated by the Board of Revenue under Section 21(3) of the Bihar Sales Tax Act. The following question of law has been referred in both the statements: "Whether the order dated 30th A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tead fixed a date for hearing under Rule 58 which states: "If the appellate officer does not reject the appeal summarily, he shall fix a date for hearing the appellant or his agent". From the order sheet of the Commissioner printed at page 6 of the paper-book it appears that on 9th February, 1948, after the memorandum of appeal was presented, the Commissioner fixed 12th of April, 1948, for hearing. On the same date he called for a report and asked the Sales Tax Officer to inform the parties of the date fixed. The order sheet dated 29th of April, 1948, shows that on that date no lawyer appeared for the appellant but a petition for time was presented on the ground that certain documents were filed before the High Court and they had not yet be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act are in pari materia with Section 31 of the Indian Income-tax Act. In my opinion the word "determination" in Section 20(2) of the Bihar Sales Tax Act must be construed to mean a decision on the point raised in the case and not merely an order of dismissal for default. It is clear that the Commissioner acted illegally in dismissing the appeal for default and confirming the assessment without giving reasons in support of his order. For these reasons I would answer the question referred to the High Court in the negative. There will be no order for costs. (1) [1950] 18 I.T.R. 928. SARJOO PROSAD, J.-I agree. The reference in both the cases should be answered in the manner indicated and for the reasons stated by my learned brother. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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