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TMI Blog1953 (5) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... on dependent upon the interpretation of Section 31 and 32 of the Sales Tax Act. They were, therefore, ordered to be heard together. When these applications came up before a Division Bench of the Court presided over by me, we realised that the question involved was almost covered by a Division Bench decision of this Court in Messrs. Rahman Stores v. Commissioner of Taxes, Assam(1). The correctness of this decision was, however, seriously challenged by the learned counsel appearing on behalf the petitioners, and prima facie we were inclined to think that the matter required re-consideration. We, therefore, directed that these applications should be heard by a larger Bench. The relevant facts which give rise to these petitions, discarding minor details, are that the petitioners moved the Commissioner to revise the order of assessment passed against them under Section 31(1) of the Assam Sales Tax Act. The applications were dismissed by the Commis- sioner on the ground that they had been filed beyond "ninety days of the date of the order". The petitioners then moved the Commissioner for a reference to this Court under Section 32(2) of the Act, but the appli- cations for reference were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the assessment of, or otherwise prejudicial to, a dealer, such dealer may, by application in writing accompanied by a fee of one hundred rupees, require the Board or the Commissioner, as the case may be, to refer to the High Court any question of law arising out of such order." It is contended that the words "ninety days of the date of the order" contained in sub-section (1) of Section 31, must be read as the date on which the order is made known or communicated to the party affected by that order. The words "date of the order" or "the date of passing of an order" are words of well recognised legal import, and in circumstances where the statute does not provide for any date on which the order is to be delivered or communicated in the presence of the parties, it must obviously mean the date on which the order is made known to the party concerned or is communicated to him. The communication of the order may be according to the method or practice followed by the authorities concerned unless some particular mode of communication is provided. It is thus urged that the order cannot be deemed to be effectively made or passed until it has been communicated to the party affected by it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e recording of any avail. The existence of an order necessarily implies that some person has to abide by it and carry out its directions. The person cannot evidently do so unless it is made known to him and he has actual or constructive knowledge of it by some valid process. His next contention is that, in any event, under Section 47 of the Act he was entitled, as matter of right, to the exclusion of time requisite for obtaining a copy of the order in computing the period of limitation. The "time requisite", according to the learned counsel, should include not only the period between the date of the application for a copy of the order and the date on which the copy was ready for delivery, but the period anterior to it running between the date of the order and the date when it was communicated to the petitioners so as to enable them to apply for certified copies thereof. So long as the party was not aware of the order, he could not obviously apply for a copy thereof. A reference has also been made to the various rules framed under the Act, which require the filing of certified copies in appeals and reviews under the Act, and on this basis it is contended that it was essential to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions are found to exist. The first condition is that it must be in respect of "an order of appeal or revision enhancing the assessment of, or otherwise pre- judicial to, a dealer", and the second condition is that the reference must be made on a question of law "arising out of such order". We need not at present trouble ourselves with an examination of the second condition. But the question of importance is whether the first condition is fulfilled in the present cases; namely, whether the orders against which the appli- cations are directed, were orders enhancing the assessment of, or "other- wise prejudicial to, the dealer". That the orders were not orders enhanc- ing the assessment, is conceded on all hands. The orders were merely (1) (1922) 49 I.A. 307. (2) (1886) 13 Cal. 104. orders rejecting the applications in revision, and even the appellate orders, while they modified the assessments in favour of some of the petitioners, in regard to some of the items, affirmed them in other respects. Then the only question to which we need address ourselves is, whether the orders in question were "otherwise prejudicial" to the petitioners. In the proviso to sub-section (1) of Section 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority subordinate to him, draw up a a statement of the case and refer it, with his own opinion thereon to the (1) [1948] 16 I.T.R. 214; 74 I.A. 306. High Court; (2) that within sixty days of the date on which he was served with notice of an order under Section 31 or Section 32 or of an order under Section 33 "enhancing an assessment or otherwise prejudicial to him", the assessee in respect of whom the order or decision was passed, might, by application, require the Commissioner to refer to the High Court any question of law arising out of such order or decision, and the Commissioner should within sixty days of the receipt of such application, draw up a statement of the case and refer it, with his own opinion there- on, to the High Court. I need not refer to the other portions of Section 66. Here again, it is obvious that there was a provision for a reference to the High Court on a question of law arising out of an order "enhancing an assessment or otherwise prejudicial to the assessee." In dealing with this aspect of the case, the Judicial Committee were confronted with the very same question with which we are confronted, namely, "Whether, where the Commissioner, acting under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have come into being before the decision of the Judicial Com- mittee, yet their Lordships' interpretation of the term "prejudicial order" did not depend upon any such amendment, but independently thereof on the provisions as they stood before the amendment. The Privy Council decision, therefore, does not follow the amendment nor is it based upon it; but on the contrary the amendment may have followed or anticipated the principle underlying that decision. It is next argued that Section 33 of the Act, as quoted in the judgment of the Judicial Committee, did not concede any statutory right to the assessee to move the Commissioner of Income-tax to revise the order of assessment; it only gave an autho- rity to the Commissioner to call for the record of any case on his own motion and pass such orders after enquiry as he thought fit. Therefore, if after calling for the record, the Commissioner refused to interfere, the assessee had evidently no statutory right on the authority of which he could apply for a reference to the High Court. It must be conceded that Section 33, as it then was, did not give any right to the assessee to move the Commissioner, or impose any obligation upon the latt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal to me at all. I am not disposed to rake up all that past history after the very clear pro- nouncement of the Judicial Committee which, even if not completely binding on us, is still entitled to all the respect and attention which it deserves and which it has, on its own merits ex proprio vigore always commanded. With great respect, I feel no hesitation in adopting the above deci- sion of the Judicial Committee as laying down the correct standard as to the meaning and import of the expression "prejudicial order" as used in the taxing statutes. The technical meaning attached to the words "prejudicial order", as discussed by me above, is thrown into bold relief if we compare the language of Section 32(2) of the Sales Tax Act with the language of Section 66 of the Income-tax Act. Section 66(1) of the Income-tax Act, as amended, runs thus: "66. (1) Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of Section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied, where application is made by the assessee, by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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