DWIVEDI, J. - (1.) THESE are two references under section 11(1) of the U.P. Sales Tax Act (hereinafter called the Act). The Judge (Revisions) Sales Tax has made these references. He has formulated a common question of law and has referred the cases for opinion to this court. The common question of law is this : "Whether under the circumstance of the case section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration application remained pending as being prosecuted bona fide ?"
(2.) FACTS giving rise to these references are these : the respondent, M/s Parson Tools and Plants, Kanpur, carries on business at Kanpur. The Sales Tax Officer assessed sales for the assessment years 1958-59 on the 1959-60 on the respondent. Two separate orders were made. There were two appeals by the respondent. On the date of the hearing of the appeals the respondent was absent. So the appeals were dismissed in default on 10th May, 1963. The appeals were dismissed in default by virtue of rule 68(5) of the U.P. Sales Tax Rules. Rule 68(5) allowed dismissal of appeals in default. Sub-rule (6) of rule 68 provided for setting aside the dismissal in default and for the readmission of the appeal. In accordance with sub-rule (6), the respondent made two applications for setting aside the dismissal in default and for readmission of the appeals. While these applications were pending, Manchanda, J., held in a case that sub-rule (5) of rule 68 was ultra vires the rule-making authority and that the appellate authority could not dismiss an appeal in default. He held that the appeal should be decided on merits even though the appellant be absent. When the applications came up for hearing on 10th October, 1964, the appellate authority dismissed them outright in view of the decision of Manchanda, J. Then the respondent filed two revisions under section 10 of the Act Section 10 prescribes a period of limitation for filing a revision. The maximum period of limitation is one year and six months. But the revisions were filed beyond this maximum period. The Judge (Revisions) gave the benefit of section 14, Limitation Act, and excluded the period during which the respondent had been prosecuting the applications for readmission of the appeals. He found, as he should have, that the action of the respondent was bona fide. Excluding the period, he held that the revisions were filed within time. The Commissioner, Sales Tax, then asked the Judge (Revisions) to make a reference to this court under section 11(1). These are all the essential facts for our purpose. The respondent has not put in appearance. Sri R. R. Agarwala, as amicus curiae, has presented his case before us, and the court is thankful to him.
(3.) COMING to the merits, the Act is a special law. It prescribes a period of limitation for filing a revision under section 10. No period of limitation for filling such a revision is prescribed by the First Schedule of the Limitation Act. Accordingly section 29(2), Limitation Act, is attracted to the case. By virtue of section 29(2), Section 14, Limitation Act, will apply provided the requirements of that provision are fulfilled in these references and section 14 is not expressly excluded by the Act. Section 14 consists of two sub-section. We are not concerned with sun-section (1) in these references. Sub-section (2) is material for our purpose. Sub-section (2) provides that in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another "civil proceeding", Whether in a "court of first instance or in a court of appeal", against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a "court" which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Sub-section (2) lays down several conditions. The Standing Counsel has not asserted that none of those conditions is satisfied in these cases. However, he has maintained that two of those conditions are not satisfied. According to him, the applications before the appellate authority were neither (i) a "civil proceeding" (ii) was the appellate authority a "court". (1) Re. Civil proceeding : The expression "civil proceeding" is not defined in the Limitation Act. But it appears from the context of sub-section (2) of section 14 that it is used in cortradistinction with a criminal proceeding (sic) or a proceeding which is either civil nor criminal. It is a proceeding for vindicating a civil right. In these cases there was an assessment of tax on the respondent. The respondent filed appeals in order to get rid of the assessments. The assessments would deprived them of a certain amount of money. So they were seeking a relief in respect of a civil right to property. The appeals accordingly constituted a civil proceeding. A civil proceeding will include a proceeding which seeks relief against the enforcement of a taxation statute. "The primary object of a taxation statue is to collect revenue for the governance of the State or for providing specified services and such laws directly affect the civil rights of the taxpayer. If a person is called upon to pay tax which the State is not competent to levy, or which is not imposed in accordance with the law which permits imposition of the tax, or in the levy, assessment and collection of which rights of the taxpayer are infringed in a manner not warranted by the statue, a proceeding to obtain relief whether it is from the tribunal set up by the taxing statute, or from the civil court would be regarded as a civil proceeding" : (per Shah, J., in S.A.L. Narayan Row v. Ishwarlal Bhagwandas (A.I.R. 1965 S.C. 1818 at p. 1821; 57 I.T.R. 149 (S.C.))). The applications for the readmission of the appeals will partake of the nature of appeal will be a civil proceeding. (2) Re Court : This is rather not an easy question. According to counsel for the respondent the appellate authority as well as the Judge (Revisions) function as a "court" under the Act. After the Sales Tax Officer has made assessments, there lies an appeal under section 9 before the appellate authority. By rule 2(bbb) the Assistant Commissioner (Judicial) performs the duties and exercises the power of an appellate authority. He is different from the Assistant Commissioner (Executive) who performs executive duties and exercises executive powers and does not entertain and decide appeals under section 9. Chapter XI of the Sales Tax Rules deals with appeal and revision. Rule 65 to 68 provide for the entertainment and disposal of an appeal. The appeal is decided after hearing the appellant and the Sales Tax Officer. Section 10 provides for a revision against the appellate order. The revision is filed before the revising authority. The Judge (Revisions) is the person who performs the duties and exercises the powers of a revising authority. The revising authority hears the parties and then decides the revision. Rule 69 regulates the procedure for the entertainment and decision of a revision. We are also referred to rule 75 of the Sales Tax Rules. This rule provides that the Sales Tax Officer, the Assistant Commissioner (Judicial) and the Judge (Revisions) as well as some other authorities appointed under the Sales Tax Act shall have the same powers as are vested in a court under the Code of Civil Procedure, when trying a suit in respect of, inter alia, examining any person on oath or affirmation. Counsel for the respondent points out that it will appear from these provisions of the Act and the Rules that the appellate authority as well as the revising authority function in a judicial manner. That is, no doubt, true. They are tribunals constituted under the Act. Then he draws our attention to the definition of the word "court" in the Evidence Act and submits that they are a court according to that definition. That is also true for they are empowered to examine persons on oath or affirmation. So they are a court in the wider sense of the term. But there is no doubt they are not a court in the strict sense of the term. So it is necessary to ascertain whether the word "court" is used in sub-section (2) of section 14, Limitation Act, in its wider sense or in its strict sense. ;