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TMI Blog1982 (2) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... (3A) of the Bombay Sales Tax Act, 1959, in respect of Samvat Years 2024 and 2025?" When we read the aforesaid questions of law referred to us by the Sales Tax Tribunal, it was not possible for us to agree that the Sales Tax Tribunal has referred to us a question of law, which is set out at point No. (1) hereinabove. From the very question as formulated by the Sales Tax Tribunal, it is clear to us that question No. (1) which is referred by the Tribunal to us, is not a question of law. The very question shows that the Tribunal did take into consideration irrelevant evidence on the record of the case and that the Tribunal did know the relevant evidence as alleged. Under the aforesaid circumstances, it is difficult for us to come to the conclusion that question No. (1) as formulated by the Tribunal is a question of law. At this stage, we may usefully refer to the reported decision of the Supreme Court in the case of Commissioner of Income-tax, Bihar and Orissa v. S.P. Jain [1973] 87 ITR 370 (SC). At page 381 of the judgment, the Supreme Court has observed as follows: "In our view, the High Court and this Court have always the jurisdiction to intervene if it appears that either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can never be challenged on the ground that they are based on misappreciation of evidence. A conclusion reached by the Tribunal on the ground that it is a conclusion on a question of mixed law and fact, is no doubt based upon the primary evidentiary facts, but its ultimate form is determined by the application of relevant legal principles. The need to apply the relevant legal principles tends to confer upon the final conclusion its character of a legal conclusion. In dealing with findings on questions of mixed law and fact the High Court would no doubt have to accept the findings of the Tribunal on the primary questions of fact; but it is open to the High Court to examine whether the Tribunal had applied the relevant legal principles correctly or not; and in that sense, the scope of enquiry and the extent of the jurisdiction of the High Court in dealing with such points is the same as in dealing with pure points of law." (emphasis supplied*) In Bai Velbai v. Commissioner of Income-tax, Bombay City [1963] 49 ITR 130 (SC) the Supreme Court has observed as follows: "A finding of fact does not alter its character as one of fact merely because it is itself an inference from other bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. (1), which is referred to us suffers from the vice of vagueness and uncertainty. We may also mention that it was an impossible task for us to find out what irrelevant evidence was considered by the Tribunal when it decided the case and it was equally impossible for us to find out what was the relevant evidence which the Tribunal should have considered. With the aforesaid difficulty, we did peruse the judgment delivered by the Tribunal in Second Appeals Nos. 54 to 58 of 1977. At this stage, we may usefully refer to a few relevant facts. The applicant-assessee was running a sole proprietary concern of one Shri Gordhanbhai Shivabhai Patel, which was registered as a dealer under the Bombay Sales Tax Act, 1959, during Samvat Years 2024 and 2025. The applicant-assessee was carrying on business to resell tea at Godhra in Panchamahals District, mostly on wholesale basis. The applicant's business premises are situated at Station Road in Godhra Town and in those premises one Chimanlal, who is the son of the applicant's sole proprietor Gordhanbhai Shivabhai Patel, also carried on his independent business in the name and style of M/s. Anil Co. According to the applicant-assessee, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration the various circumstances and pieces of evidence referred by the Sales Tax Officer which is annexed at page 40 of the compilation. Suffice it to say that the Sales Tax Tribunal did take into consideration the following circumstances: (1) Statement of the Manager of Savani Transport Company saying that the goods, namely, tea, transported from Cochin to Nadiad were taken delivery of at Nadiad by one Shri Chimanlal who happens to be the son of the proprietor, whose signature has been obtained on the office copy of money receipt given to Shri Chimanlal on payment of the amount of freight. (2) Address of M/s. Anil Co. as given is "Station Road, Godhra". The applicant-assessee's address is also the same as this. (3) Transport receipts have been signed by Chimanlal who is the son of the proprietor of the applicant-assessee. (4) Statement of Shri Mohanbhai working as a Postman that the post relating to four different concerns was being delivered at Modern Printing Press, which is a proprietary concern of Shri Chimanlal who also looked after the applicant-assessee's business. (5) Letter dated 7th October, 1968, signed by one Shri Rameshchandra on behalf of M/s. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the Tribunal but the Tribunal, having considered the evidence to which its pointed attention was invited, dismissed the appeals of the applicant-assessee. It is under these circumstances that an application was made by the applicant-assessee that the aforesaid questions of law should be referred to this Court for its decision. We must at the very outset say that question No. (1) is not a question of law. What is the irrelevant evidence which was considered by the department or even the Tribunal? Can it be conceived for a moment that when the Tribunal dismissed the two second appeals, it dismissed the same without considering relevant evidence? Can it be considered for a moment that the Tribunal ignored the relevant evidence while deciding the said two second appeals, which were filed by the applicant-assessee? It may be significantly noticed that we do not at all know what was the relevant evidence which was ignored by the Tribunal. It is equally impossible for us to take the view that the pieces of evidence considered by the Tribunal were irrelevant evidence. In view of the very language employed for forming the first question of law, we must say that the very question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pears from the judgment of the Sales Tax Tribunal delivered in the aforesaid appeals, being annexure A to the statement of the case, that the Tribunal did consider the various pieces of evidence and came to the conclusion that the applicant-assessee was liable to pay sales tax and also the amount of penalty as mentioned in the judgment delivered by the Sales Tax Tribunal and as stated even in the statement of the case submitted to this Court. Under the aforesaid circumstances, it is impossible for us to take the view that question No. (1) as formulated by the Tribunal can at all be named and styled or seen as a question of law. In our view, as the decision on question No. (2) referred to us essentially depends on our decision on question No. (1) referred to us by the Tribunal, it is equally impossible for us to take the view that question No. (2) is a question of law. At this stage, we may say that in order to answer question No. (1), we must know two different and distinct sets of evidence, (1) a set of irrelevant evidence, and (2) a set of relevant evidence. Without having a look at such evidence, it is impossible for us to answer the question. We may also at this stage state tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to us to consider any questions of fact. The moment we consider any questions of fact on a reference being made to us, we shall be travelling outside the narrow compass of our jurisdiction as envisaged by sub-sections (3) and (4) of section 61 of the Bombay Sales Tax Act, 1959. Thus, respecting the statutory limitation imposed on us, is it possible for us to answer the first question referred to us by the Tribunal? Is it possible to answer question No. (2) framed by the Tribunal, particularly when the decision on question No. (2) depends upon our answer on question No. (1) referred to us by the Tribunal? Question No. (3) has also a direct bearing on questions Nos. (1) and (2). In this view of the matter, and for the several reasons indicated hereinabove, we are of the view that the questions referred to us by the Tribunal are not questions of law, or are questions of such a nature which would fall within the ratio of any of the four Supreme Court cases referred to above. But Mr. Pathak with his usual tenacity argued the matter for about a couple of days and made a desperate effort to persuade us to take the view that the questions framed by the Tribunal are questions of law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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