- (1.) BY this order it is proposed to dispose of the above mentioned five revision petitions filed by Nathulal, ex-partner of the firm Maluk Chand Nathulal, Abu Road, against the orders of the Sales Tax Officer, Sirohi and Jalore dated the 13th February, 1964 (Revision No. 35) and 19th February, 1964 (four cases-Revision No. 51 to Revision No. 54 ).
(2.) THE learned counsel for the petitioner has assailed the orders of the Sales Tax Officer, Sirohi and Jalore on the ground that a dissolved firm is not liable to be assessed under the Rajasthan Sales Tax Act. In this connection, he sought reliance upon the Full Bench Ruling of the High Court of Punjab, in Jullundur Vegetable Syndicate vs. THE Punjab State reported as 1962 Sales Tax Cases Page 251. This case arose from a reference made by the Financial Commissioner (Revenue) Punjab under the provision of sec. 22 of the East Punjab General Sales Tax Act, 1948. It came up, originally, before a D. B. of the aforesaid High Court, and in view of the conflict of authority of the question involved in the reference the D. B. referred the case for decision to a Bench. THE reference was formulated by the learned Judges constituting the Division Bench as follows : - "whether a Partnership firm, which is a registered firm under the provisions of the Punjab Sales Tax Act and which was in existence throughout the period for which assessment of sales tax has to be made, ceases to be liable to the said assessment by the mere fact that it has dissolved before the proceedings for assessment are initiated. " In this case, the firm which was a petitioner before the Financial Commissioner (Revenue) had commenced business on the 4th October, 1952 and was dissolved with effect from the 11th July, 1953, and intimation of dissolution of the firm under sec. 16 of the Act was sent to the Department on the 18th July, 1953. The firm had carried on business throughout the accounting period from the 4th of October, 1952 to the 31st of March, 1953, and an assessment of sales tax under the Act was made on the 30th May, 1953 for this period but it was quashed by the Financial Commissioner (Revenue) on the ground, that the assessing authority had no jurisdiction to make the assessment. Then a fresh assessment was made under sec. 11 of the Act on the "best judgment basis"on the 3rd of September, 1955 i. e. more than two years after the notice of dissolution of the firm had been received by the Department, but on an appeal by the assessee the Deputy Excise and Taxation Commissioner by his order dated the 20th of October, 1956, reduced the figure of taxable turnover to Rs. 9,61,591. 11. 3 and the tax payable to Rs. 30,049. 12. 0. The revision taken by the assessee to the Financial Commissioner failed, and in the revision one of the objections raised by the assessee was that proceedings for assessment of the sales tax could not be initiated after its dissolution. This objection was repelled by the Financial Commissioner, but subsequently on being moved by the assessee, the aforesaid reference under Sec. 22 of the Act was made. The crux of the argument advanced on behalf of the assessee was that a firm, in the definition of a "dealer", as given in the Act was a distinct entity from its individual partners; and there was no machinery provided in the Act for making assessment on the firm as such after its dissolution, and in the absence of such provision, a firm which had been dissolved could not, as such, be assessed to tax even on the sales made by it during its existence in the whole or part of the accounting period. It was contended that the application of a statute imposing a tax could not be extended by analogy or on logical consideration of what the Legislature might be supposed to have intended. In answering the question referred to then in the affirmative, the learned Judges quoted Maxwell on Interpretation of Statutes at p. 288 of the tenth edition - "statutes which impose pecuniary burdens, also, are subject to the same rule of strict construction. It is a well-settled rule of law that all charges upon the subject must be imposed by clear and unambiguous language, because in some degree they operate as penalties. The subject is not to be taxed unless the language of the statute clearly imposes the obligation. " It was observed by the learned Judges that: - "a partnership firm which was a registered dealer under the provisions of the East Punjab General Sales Tax Act, 1948, and which was in existence throughout the period for which assessment of sales tax had to be made was not liable to the said assessment if it had been dissolved before the proceedings for assessment were initiated. The information which is to be furnished under sec. 16 regarding the discontinuance of the business of the firm is only for administrative purposes such as cancellation or amendment of the certificate of registration, and the default in giving such information makes the person responsible or liable to penalty under clause (h) of Sec. 23 (1 ). It had no connection with the liability to assessment. " In this context, the learned counsel for the petitioner drew my attention to the history of the firm, and stated that the aforesaid firm had started business on the 9th November 1961. The business of the firm was, subsequently, dissolved on the 23rd November, 1963. The intimation of the dissolution of the firm was conveyed to the Sales Tax Deptt, on the 28th November, 1963. The Sales Tax Officer, however, issued notice for purposes of assessment on the 29th November, 1963, which was received by the applicant on the 30th November, 1963. On the 13th February, 1964, the petitioner submitted an application denying liability of assessment on the ground that the firm had stood dissolved with effect from the 23rd November 1963, and that the intimation of dissolution of the firm under Sec. 8 of the Rajasthan Sales Tax Act had been communicated to the Deptt. on the 28th November, 1963. The learned Sales Tax Officer, however, rejected the application of the petitioner vide his order dated the 13th Feb , 1964, on the ground that under sec. 6 (6) of the Rajasthan Sales Tax Act a dealer was liable to be assessed, until his registration was cancelled. Relying on 1962 Sales Tax Cases Page 251, the learned counsel for the petitioner has now attacked this order. It has been urged on behalf of the petitioner that in making the impugned order, the learned Sales Tax Officer has acted illegally and with material irregularity. It has been averred on his behalf that as the impugned order is not subject to appeal a revision has been filed. It was submitted that the matter deserved to be cured under the revisional power of this Court, as the learned Sales Tax Officer had proceeded with the assese-ment proceedings without jurisdiction. The other four revision petitions are directed against the orders of the learned Sales Tax Officer, Sirohi and Jalore dated the 19th February 1964, whereby he had decided to proceed with the assessment on the best of judgment basis, having given the assessee full opportunity to be heard and to file returns or statements of sales and to produce any evidence in support of his sales effected during the assessment periods. In these revision petitions, also, it was stated that the orders of assessment were incorrect and not based on judicious consideration of facts. It was stated that as the applicant had raised a substantial question of law the same deserved to be adjudicated upon dispassionately and judiciously, and as the learned Sales Tax Officer had no jurisdiction to proceed with the assessment in the case of a firm which had been dissolved] it was prayed that the revision petition be accepted, and the orders of the learned Sales Tax Officer be quashed. In pressing the revision petition the learned counsel for the petitioner sought support from Shri Gangla Vs. Shri Mangal Singh, reported as R. R. D. 1962 Page 136, in which it was held that - "the revising powers of the Board u/s. 84 can be exercised even in cases connected with Settlement in which no appeal lies to the Board if the Officer by whom the case was decided appears to have exercised the jurisdiction not vested in him or have failed to exercise the jurisdiction so vested or to have acted in the exercise thereof illegally or with material irregularity. It is not, however, intended to convey that in every case the parties are free to bye-pass the appellate authority and bring a revision directly. But still, it is not quite an inflexible rule of law; and the Board can examine a case brought to it if it deems fit. This has been a practice followed throughout and, therefore, the revision application was examined as it was. " He also cited Rama vs. State of Rajasthan, a D. B. ruling of the Rajasthan High Court, reported as RRD 1962 Page 277 in which it was held that : - "sec. 84 confers very wide powers on the Board to call for record of any case of judicial nature or connected with settlement proceedings and pass any order that it considers appropriate. The only limitation is that this power could be excercised only when no appeal lay to the Board. An order of Collector, condoning delay and entertaining appeal, not being appealable under sec. 77 (a), Board can exercise its jurisdiction under sec. 84 and in revision can make any order that it thought fit. Board is not hampered by the fact that an appeal in due course will lie to Settlement Commissioner or to some other authority subordinate to it. " Another authority relied upon by him in this connection, is Chetandas vs. Bhura, reported as RRD 1962 page 206. It was held therein that - "it is not, and cannot be, denied that the Board of Revenue as such has full powers to hear any revision against any order passed by any subordinate Officer or court subject to the provisions of Sec. 84 of the Act. This section provides that the Board may call for the record of any case of judicial nature or connected with settlement in which no appeal lies to the Board if the court or Officer by whom the case was decided appears to have exercised a jurisdiction not vested in it or him by law, or to have failed to exercise jurisdiction so vested, or to have acted in the exercise of its, or bis jurisdiction illegally or with material irregularity, and may pass such orders in the case as it thinks fir. That the present case is case of a judicial nature is undisputed. That no appeal lies u/s. 65 of the Act against an order of dismissal in default passed in any proceedings by any Revenue Officer u/s 63 thereof is also quite clear and is not contested by the learned counsel for the opposite party. The revision will, therefore, lie to the Board in the case. " Anticipating the objection likely to be raised by the learned Government Advocate, that the revision petitions were incompetent, as law provided for filing of appeals in these cases, the learned counsel for the petitioner sought to develop the argument that the Board of Revenue could not be hampered in the exercise of its revisional powers, where it was found that palpable injustice was being perpet-rated,and the Courts below had exceeded in the exercise of jurisdiction even though the impugned orders could be challenged in appeal. In this connection he cited Motilal Vs. State of Rajasthan, reported in RRD 1963 Page 140, in which the following observation was made by the learned Members of the D. B. , who heard the case: - "the learned counsel for the Govt. submitted that this aspect of the matter could have been raised by the applicant before the Revenue Appellate Authority to whom a second appeal lay under the orders of the Additional Collector. This is true but once the revision has been entertained by the Board and the question involved is about the jurisdiction of the subordinate Courts in the proceedings, it is not necessary or proper to reject the revision only on the ground that a second appeal should have been preferred before the competent authority in accordance with the law; particularly so in view of the fact that the entire proceedings before the learned Tehsildar and Additional Collector were misconceived, as the proceedings were taken under the Rajasthan Land Revenue Act and a second appeal in respect of those proceedings before the Revenue Appellate Authority was not called for when the very basis of those proceedings is challenged in the revision. We, therefore, over-rule the Government Advocate's objection in order not to prolong litigation unnecessarily, which will be a harassment to the parties. " The learned counsel for the petitioner, further, brought to my notice the case of M/s. Chhagan Mal Basti Mal Beawar (Ajmer) (Case No. 270 (Ajmer)/1963) decided on the 19th March, 1964 in which relying upon the above mentioned authorities, the learned Member decided to exercise the revisional jurisdiction of the Board of Revenue and overruled the preliminary objection raised by the learned Govt. Advocate to the effect that the petitioner should have appealed to the Deputy Commissioner instead of evoking the revisional powers of this Court as the impugned order passed by the learned Sales Tax Officer was appealable under sec. 13 of the Sales Tax Act. In that case, also, it was argued by the learned Government Advocate, that this Court should not exercise its revisional jurisdiction lightly, when the other party had failed to take advantage of the legal remedy open to them, but the learned Member who heard the case over-ruled this objection, holding that the impugned order was without jurisdiction, and it was a fit case where the Board should not hesitate to exercise its revisional jurisdiction.
(3.) THE cap it all, the learned counsel for the petitioner cited AIR 1964 Supreme Court 497, which lays down the law in connection with the exercise of revisional jurisdiction by the High Court. This authority has widened the scope of the powers to be exercised by the High Court in the discharge of their supervisory functions, and over rules the interpretation placed, on sec. 115 of the C. P. C. by the Full Bench of the Rajasthan High Court in AIR 1953 Raj 137, which relying upon an earlier judgment of a D. B. (AIR 1953 Raj 90) had held that - "where it is open to a party to raise a ground of appeal under sec. 105 of the Code from the final decree or order, with respect to any order which has been passed during the pendency of a suit, it should be held that an appeal in that case lies to the High Court within the meaning of the term fin which no appeal lies thereto' appearing in sec. 115 Civil Procedure Code," and the exercise of revisional jurisdiction of the High Court is excluded. " The learned Judges of the Supreme Court over ruled this and observed as follows : - "to interpret the expression "case" as an entire proceeding only and not a part of a proceeding would be to impose a. restriction upon the exercise of powers of superintendence to which the jurisdiction to issue writs, and the supervisory jurisdiction are not subject, and may result in certain cases in denying relief to an aggrieved litigant where it is most needed, and may result in the perpetration of gross injustice. The expression "case" includes a suit, but in ascertaining the limits of the jurisdiction of the High Court, there would be no warrant for equating it with a suit alone. " Once it is granted that the expression "case" includes a part of a case, there is no escape from the conclusion that revisional jurisdiction of the High Court may be exercised irrespective of the question whether an appeal lies from the ultimate decree or order passed in the suit. Any other view would impute to the Legislature an intention to restrict the exercise of this salutary jurisdiction to those comparatively unimportant suits and proceedings in which the appellate jurisdiction of the High Courts is excluded for reasons of public policy. Nor is the expression "in which no appeal lies thereto" susceptible of the interpretation that it excludes the exercise of the revisional jurisdiction when an appeal may be competent from the final order. The use of the word 'in' is not intended to distinguish orders passed in proceedings not subject to appeal from the final adjudication, from those from which no appeal lies. If an appeal lies against the adjudication directly to the High Court, or to another Court from the decision of which an appeal lies to the High Court, it has no power to exercise its revisional jurisdiction, but where the decision itself is not appealable to the High Court directly or indirectly, exercise of the revisional jurisdiction by the High Court would not be deemed excluded. " On the other hand, the learned Government Advocate drew my attention to sec. 13 and the second proviso to sec. 14 (2) of the Rajasthan Sales Tax Act and argued, as anticipated by the learned counsel for the petitioner, that these revision petitions could not be entertained as the petitioner could have appealed under sec. 13 and no appeal had been filed by him. In support of his argument he cited the following decisions of the Board of Revenue : - (1) Revision No. 170/udaipur/st/1962 - Messrs Chaudhary Bus Service Nathdwara vs. State of Rajasthan, decided on 10th May, 1963. (2) Revision No. l65 (Jodhpur) 1962 - Shri Mahavir Singh Dhandha deceased ex-partner of M/s. Modern Shoe Mart, Jodhpur vs. Sales Tax Officer, Jodhpur City, Jodhpur, decided on 6. 8. 63. f (3) Revision No. 135/63 - New Sugar Merchants Association, Badhmer vs. State of Rajasthan decided on 7. 10. 63. (4) Revision No. 134/63. District Grain Merchants Association, Badhmer vs. State of Rajasthan. Decided on 7. 10. 63. It was contended by him that this Court was bound by the rulings of the D. B. of this Board cited as (1) and (2) above. It was also argued by him that sec. 24 of the Rajasthan Sales Tax Act conferred specific powers of the Code of Civil Procedure on the Board of Revenue and since these powers did not include powers under sec. 115 of the Civil Procedure Code, the learned counsel for the petitioner could not rely upon the authorities, expounding the law relating to sec. 115 of the C. P. C. For the same reason, he argued that the authorities cited in elaboration of sec. 84 of the Land Revenue Act, were also irrelevant. In nutshell, his argument was that the revisional powers of the Board of Revenue in relation to the Sales Tax Act having been specifically laid down under sec. 14 of the Rajasthan Sales Tax Act, it would not be appropriate to travel beyond its scope in any case. He further argued that as assessment orders had since been made in the four cases impugned vide revision petitions Nos. 51 to 54 of 1964, the revision petition No. 35 of 1964 had become infructuous and even if the same was accepted, the assessment orders made subsequently could not be annulled. In reply, the learned counsel for the petitioner stated that the authorities cited by the learned Government Advocate did not seek to interpret or elaborate the implications of sec. 14. He stated that sec. 14 of the Rajasthan Sales Tax Act was analogous to sec. 84 of the Land Revenue Act and sec. 115 of the C. P. C. and it was, therefore, relevant to examine the law laid down in the interpretation thereof while examining the scope of S. 14 of the Rajasthan Sales Tax Act. His argument with which I am inclined to agree, in brief, was that the revisional powers of the Board of Revenue are not hampered by sec. 14 of the Rajasthan Sales Tax Act. In suitable cases, where the orders of the subordinate Courts suffer from lack of jurisdiction it does not debar the supervisory Courts from interfering at an earlier stage, even if an appeal lies in the case so as to avoid prolonged litigation and harassment. In fact, the extraordinary powers of revision vest in a supervisory Court to administer speedy justice and to protect an aggrieved litigant from perpetration of uncalled for mischief. In this view of the matter, I am of the opinion that these revision petitions are competent and have been rightly entertained. ;