DIRECTOR OF SUPPLIES AND DISPOSALS Vs. BOARD OF REVENUE
LAWS(CAL)-1960-6-14
HIGH COURT OF CALCUTTA
Decided on June 08,1960

DIRECTOR OF SUPPLIES AND DISPOSALS Appellant
VERSUS
BOARD OF REVENUE Respondents

JUDGEMENT

LAHIRI, C.J. - (1.) THE points involved in this rule are of some importance. A decision of the points will turn on an interpretation of the expression "passing of an order" as used in section 21 of the Bengal Finance (Sales Tax) Act, 1941. The assessee is the petitioner in this Rule and he filed the petition upon which this Rule has been issued under section 21(2)(b) of the Bengal Finance (Sales Tax) Act. The facts which are not in dispute may be briefly stated as follows. The assessee filed an application for revision before the Board of Revenue against an order made by the Commercial Tax Officer affirmed on appeal by the prescribed authority and on revision by the Commissioner. The application before the Board of Revenue was under section 20(3) of the Act. On 26th September, 1958, the Board of Revenue dismissed the assessee's application and the order of the Board of Revenue was communicated to the assessee on 14th October, 1958. The terms of the letter by which the order of the Board of Revenue was communicated to the assessee are as follows :- "The above petitions have been rejected by the Board. The Board's orders dated 26th September, 1958, passed in the matter are open to inspection on any day during office hours."
(2.) IT is admitted that this letter dated 4th October, 1958, reached the assessee on 14th October, 1958. On 17th October, 1958, the assessee filed an application for a certified copy of the order and he obtained a certified copy of the order on 22nd November, 1958. On 2nd January, 1959, the assessee filed an application requiring the Board of Revenue to refer to the High Court certain questions of law arising out of the order of the Board of Revenue. This application was dismissed by the Board on the ground that it was filed more than sixty days after the date of the passing of the order by the Board. The assessee thereafter moved this Court under section 21(2)(b) of the Act and obtained this Rule. The only question that falls for consideration in this Rule is, what is the date of starting point of limitation on the facts of this case. On behalf of the assessee it is contended by Mr. Kar that the limitation of sixty days provided for by section 21(1) of the Act runs from the date of communication of the order of dismissal to the assessee and the assessee is further entitled to deduct the period taken by him for obtaining a certified copy of the order of the Board. The time taken for obtaining a certified copy of the order can be deducted if section 12(2) of the Indian Limitation Act applies to this case. According to section 29 of the Indian Limitation Act the provisions of section 4, sections 9 to 18 and section 22 will apply to a special or local law only in so far as and to such extent to which they are not expressly excluded by the special or local law. There is nothing in the Bengal Finance (Sales Tax) Act of 1941 to exclude the operation of the whole or any part of section 12 of the Indian Limitation Act. Accordingly, section 12 is certainly attracted to a proceeding under the Bengal Finance (Sales Tax) Act. But the difficulty of applying section 12(2) to a proceeding like the present one is that the operation of section 12(2) is limited to an appeal, an application for leave to appeal, and an application for a review of judgment. The application filed by the assessee before the Board of Revenue under section 21(1) of the Bengal Finance (Sales Tax) Act, 1941, does not come under any of the categories mentioned in section 12(2) of the Indian Limitation Act. It is neither an appeal nor an application for leave to appeal nor an application for review. The result is that section 12(2) though attracted to a proceeding under the Bengal Finance (Sales Tax) Act by section 29 of the Indian Limitation Act, excludes itself by its own language from the present proceeding and the assessee is not entitled to exclude the time requisite for obtaining a copy of the order against which the application for reference under section 21(1) of the Bengal Finance (Sales Tax) Act was filed. This view of the scope of section 29 read with section 12(2) of the Indian Limitation Act was taken by a Full Bench of the Allahabad High Court in the case of Gopaldas Saravdayal v. Commissioner of Sales Tax ([1956] 7 S.T.C. 360; I.L.R. (1956) 1 All. 53). I respectfully agree with the view taken by the Allahabad High Court in that case and relying upon that decision and the reasons given by me, I would respectfully differ from the view taken by Chatterjee, J., sitting singly, in the case of India Ice and Cold Storage Co., Ltd. v. The Member, Board of Revenue, West Bengal ([1948] 1 S.T.C. 191; 53 C.W.N. 191), and also the view taken by the Patna High Court in the case of Mohan Lal Hardeo Das v. Commissioner of Income-tax, Bihar and Orissa (A.I.R. 1930 Pat. 14; I.L.R. 9 Pat. 172), and also other cases in which it has been held that section 12(2) of the Indian Limitation Act applies to a case which is neither an appeal nor an application for leave to appeal nor an application for review of judgment.
(3.) SO far as this Court is concerned Bose, J., has followed the Full Bench decision of the Allahabad High Court, in preference to the decision of Chatterjee, J., in the case of India Ice and Cold Storage Co. Ltd. v. The Member, Board of Revenue, West Bengal ([1948] 1 S.T.C. 191; 53 C.W.N. 191), in an unreported judgment in the case of Calcutta Cloth Agency v. S. Banerjee (Civil Revision 2142 of 1955 decided on 3rd April, 1957). I agree with the view taken by Bose, J., in the aforesaid case as to the scope of section 29 read with section 12(2) of the Indian Limitation Act. I accordingly hold that the petitioner is not entitled to exclude the time taken for obtaining a certified copy of the order of the Board of Revenue under section 12(2) of the Indian Limitation Act.;


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