STATE OF RAJASTHAN Vs. MAGNUS DRUG HOUSE
HIGH COURT OF RAJASTHAN (FROM: JAIPUR)
STATE OF RAJASTHAN
MAGNUS DRUG HOUSE
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S. C. AGRAWAL, J. -
(1.)THE Board of Revenue by its order dated 30th July, 1971, has referred the following question for the opinion of this Court : " Whether, in the facts and circumstances of the case, the learned Member has rightly ordered for continuation of stay of recovery proceedings till disposal of the appeal by the party notwithstanding the rejection of the revision itself on the grounds of non-maintainability ?"
(2.)THE aforesaid reference has been made in the following circumstances : THE Assistant Commercial Tax Officer, Circle-A, Ward-I, Jaipur, passed an order dated 22nd August, 1968, whereby he computed that a sum of Rs. 5,492. 70 was payable as tax by the respondent and imposed a penalty of Rs. 1,000 under section 16 (1) (b) of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act ). THE respondent filed a revision petition against the aforesaid order of the Assistant Commercial Taxes Officer before the Board of Revenue. THE said revision petition was disposed of by the learned Member of the Board of Revenue by his order dated 27th November, 1970. THE learned Member of the Board of Revenue held that the revision was not maintainable. But at the same time, the learned Member of the Board of Revenue observed that since the respondent had filed the revision petition under a bona fide belief that an appeal did not lie against the order, it appeared to be in the interest of justice that he should be given time to file an appeal and the time which was spent by him in prosecuting the revision petition should be excluded in computing the period of limitation for the appeal and further that the order which had been passed in the revision petition staying the recovery of the tax and penalty should continue till the disposal of the appeal of the respondent. An application was moved by the assessing authority before the Board of Revenue for referring the question of law arising from the said order of the Board of Revenue dated 27th November, 1970, to this Court and the Board of Revenue by its order dated 30th July, 1971, has referred the question abovementioned to this Court.
We have heard Shri Bapna, the learned counsel for the department. The respondent has not appeared even though he has been duly served.
From a perusal of the order dated 27th November, 1970, passed by the learned Member of the Board of Revenue we find that the learned Member of the Board of Revenue has held that the revision petition filed by the respondent against the order dated 22nd August, 1968, was not maintainable and that the respondent should have filed an appeal against the said order. Having found that the revision petition filed by the respondent was not maintainable, the learned Member of the Board of Revenue was, in our opinion, not competent to give any direction in the revision petition with regard to the continuation of the interim order staying the proceedings for recovery of tax and penalty till the disposal of the appeal that may be filed by the respondent. After having come to the conclusion that the revision petition of the respondent was not maintainable, the learned Member of the Board of Revenue should have stayed his hands as, in law, he had no jurisdiction to pass any order for continuation of the interim stay order which had been passed in the revision petition. This is more so in view of the specific provisions contained in sub-section (5) of section 14 of the Act which empowers the Board of Revenue to stay the recovery of the disputed amount of tax or any part thereof pending the disposal of the revision petition. Since the revision petition was being dismissed by the learned Member of the Board of Revenue on 27th November, 1970, the interim stay order passed in the revision petition could not be extended beyond 27th November, 1970.
In these circumstances, we are of the opinion that the learned Member of the Board of Revenue was not right in ordering for continuation of the interim order staying the recovery proceedings till the disposal of the appeal to be filed by the respondent notwithstanding the rejection of the revision petition on the ground of non-maintainability. The question is, therefore, answered in the negative. There shall be no order as to costs. Reference answered in the negative. .
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