9911796707
TMI Blog1987 (8) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the aforesaid question are that the order of assessment passed by the Additional Sales Tax Officer, against the assessee was served on the assessee-applicant on 1st February, 1979. The period of limitation for preferring an appeal against the said order as contained in section 38(4) of the Act is 30 days from the date of communication of the order against which the appeal is to be filed. The period of 30 days calculated from 1st February, 1979 was to expire on 3rd March, 1979. The assessee sent the memorandum of appeal to the Deputy Commissioner of Sales Tax, Sagar by registered post on 1st March, 1979. The registered letter containing the memorandum of appeal was received in the office of the Deputy Commissioner of Sales Tax on 6th Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion as to whether the date on which the memorandum of revision under section 39 of the Act read with rule 57(4) framed thereunder was posted under a registered cover is relevant for purposes of computing the period of limitation or the date on which it was actually received in the office of the Revising Officer, the matter was referred to a third learned Judge and the decision on the basis of the view taken by the third Judge was that if a revision application sent by registered post reached the revising authority after the prescribed period, it would be barred by limitation and the date of posting is immaterial. 4.. Thereafter an application was made before the Tribunal for referring four questions to this Court for its opinion, namely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the assessee is that the real question which was for consideration before the Tribunal was as to whether the application filed for condonation of delay by the assessee did or did not make out sufficient cause and since the Tribunal did not advert to this question at all, this circumstance also have to be taken into consideration while answering the question referred to us. 6.. As seen above, from the tenor of the judgment of the Deputy Commissioner of Sales Tax, the substance of which has already been referred to above, it is apparent that the Deputy Commissioner while dismissing the appeal was of the view that sufficient cause had not been made out for condonation of delay. It is true that no specific order was pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate that the question of the cause for condonation of delay being sufficient or otherwise was raised before the Tribunal. In Tika Ram and Sons Ltd. v. Its Workman (Bishamber Dayal) AIR 1960 SC 198 it was held that if a judgment was silent on a point, prima facie it would be legitimate to infer that the said point had not been urged before the Tribunal concerned. In that case the point which was sought to be argued before the Supreme Court was that the question of jurisdiction was urged before the Tribunal, but it was not considered. With regard to this submission it was pointed out that prima facie it would be legitimate to infer that the question of jurisdiction had not been urged before the Appellate Tribunal; if it had been so raised, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is wrong or the court itself admits that the statement is erroneous, and the remedy of a party aggrieved is by way of review. 10. The second appeal filed before the Tribunal in the instant case had been decided on 27th August, 1982 by Shri A.K. Chandra, Member, Board of Revenue. The application which was made by the assessee for referring the four questions to this Court is dated 20th November, 1982 and orders on this application were passed on 20th October, 1983 by a different Member, namely, Shri K.K. Sethi. No application in between appears to have been filed for review before Shri A.K. Chandra who had decided the second appeal stating that the question as to whether sufficient cause had been made out or not for condonation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted an error in not considering the sufficiency or otherwise of the cause for condonation of delay is also implied in the question referred to us, suffice it to say that if the question referred to us had been whether the appeal preferred by the assessee was within limitation or beyond limitation, it could perhaps with some justification be argued that the aforesaid question was impliedly involved. However, keeping in view the specific nature of the question which has been referred to us, it is not possible to take the view that the aforesaid question is also involved. 12.. In view of the foregoing discussion and in view of the decision of this Court in the case of Harlal Vaishya [1983] 53 STC 271; 1982 JLJ 73, our answer to the que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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