DOMA SAO KISHUN LAL Vs. STATE OF BIHAR
HIGH COURT OF PATNA
DOMA SAO KISHUN LAL
STATE OF BIHAR
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RAMASWAMI, J. -
(1.) THIS reference is made by the Board of Revenue under Section 21(1) of the Bihar Sales Tax Act, 1944.
(2.) THE petitioner Doma Sao Kishun Lal was assessed to sales tax for six quarters, that is, quarters ending 31st December, 1945, 31st March, 1946, 30th June, 1946, 30th September, 1946, 31st December, 1946, and 31st March, 1947. The assessment order was made on 18th December, 1947. A revision petition was filed on behalf of the Department before the Commissioner of Sales Tax, Patna, on the ground (1) that the Sales Tax Officer had not examined the books properly and (2) that he had reduced the figure of gross turnover as compared with the figures for the previous quarters. The Commissioner came to the conclusion that the assessment order was not satisfactory and that the figures of the gross turnover were based on mere surmise. The Commissioner accordingly set aside the order and remanded the case for a fresh assessment to be made by the Deputy Commissioner of Sales Tax himself. The assessee moved the Board of Revenue against the order of the Commissioner but the petition was rejected. On 18th August, 1949, the assessee filed six applications before the Board of Revenue referring the case to the High Court on certain questions of law. It was objected on behalf of the State of Bihar that the petitions were time barred. But the petitioner alleged that though the orders were passed by the Board of Revenue on 15th May, 1949, he was not apprised of the same. On 2nd June, 1949, he filed an application for copies which he obtained only on 18th June, 1949. It was argued that the time for obtaining copies should be excluded from the period fixed by the statute. After hearing the parties the Board of Revenue made the present reference without deciding the point whether the objection raised by the State of Bihar was valid or not.
In this Court the preliminary question argued is whether the reference is incompetent and whether the Board of Revenue had jurisdiction to make it. Learned Government advocate pointed out that the Board of Revenue was erroneous to think that the petitioner could make the application within 90 days from the date of the order. It was argued that under Section 21 of the Sales Tax Act, 1944, the assessee was required to make an application within 60 days from the passing by the Board of Revenue of any order under sub-section (3) of Section 20 affecting the liability of the assessee. The Board of Revenue considered that Section 25 of the Sales Tax Act of 1947 applied to the case. But this opinion is incorrect. For Section 32 of the Bihar Sales Tax Act of 1947 while repealing Bihar Sales Tax Act, 1944, provides that nothing in the repeal shall affect any liability to pay tax incurred before the date of such repeal and proceedings pending on the said date, as also all proceedings initiated after the commencement of this Act but relating to any such liability as aforesaid shall be continued and disposed of or initiated and disposed of, as the case may be, as if the Act of 1947 had not been passed. It is manifest therefore that Section 21 of the Act of 1944 applies to this case and that the petitioner was bound to make an application to the Board of Revenue within 60 days from the passing of the order.
(3.) ON behalf of the assessee Mr. Dutta stressed the argument that though the Board of Revenue had passed order on 15th May, 1949, the assessee had no information till the end of the month. As soon as he came to know about the order the assessee filed an application for copy on 2nd June, 1949, and copy was supplied only on 18th June, 1949. It was maintained that the time for obtaining copy should be excluded from the period of limitation. It is not possible to accept this argument. There is no provision in the Sales Tax Act for excluding the time requisite for obtaining copies from the period prescribed. But Section 67A of the Income-tax Act states that in computing period of limitation the time requisite for obtaining copy of the order shall be excluded. Section 66 (7A) of the Income-tax Act also states that Section 5 of the Indian Limitation Act shall apply to an application to the High Court by an assessee under sub-section (2) or sub-section (3). There are no corresponding provisions in the Sales Tax Act of 1944. The omission is striking and it is therefore not possible to extend the period prescribed in Section 21 for any equitable reason. In a taxing Act, one has only to look at what is clearly said, and there is no room for any intendment. It is not open to the Court to entertain any argument that hardship would be caused. To adopt the language of Lord Cairns "if there be admissible in any statute what is called an equitable construction, certainly such a construction is not admissible in a taxing statute where you should simply adhere to the words of the statute (Partington v. Attorney General ((1869) L.R. 4 H.L. 100))". It is plain that in computing period of limitation the time requisite for obtaining copy cannot be excluded. On behalf of the petitioner it was contended that when a case has been stated by the Board of Revenue the High Court cannot consider whether the reference is competent or not. It was urged that the High Court has no alternative other than to express its opinion on the question contained in the reference. In my opinion this argument is not correct. If the Board of Revenue improperly makes reference in violation of the provision of the statute the High Court is certainly capable of entertaining objection to the statement of the case and if it comes to the conclusion that the case should never have been stated the High Court is not compelled to express its opinion upon the question referred.;
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