- (1.) THESE are three separate identical references in each of which the same question of law referred to this Larger Bench for decision is: "whether in the facts and circumstances of the case one single Revision petition was competent or whether five separate revision petitions ought to have been filed. "
(2.) THE point in issue in all these matters is that while the assessing authority passed separate assessment orders for separate years wherefore separate appeals were filed before the appellate authority, he disposed of the separate appeal by a single common appellate order. THEreafter the aggrieved dealers filed a single revision against the aforesaid order from which the question arose whether such a single revision was permissible or whether separate revisions should be filed relating to each assessment order disposed of by the common appellate order. THE learned S. B. and D. B. making the above references have referred to a number of decided cases cited by the contesting parties. Shri B. K. Khetan pointed out the difference between the provisions of sections 14 (1) and 14 (2) Rajasthan Sales Tax Act. In the latter dealing with revisions filed by dealers the record of proceedings in which the impugned order was passed has to be considered. Thus even if one revision had been filed, all the orders passed in the proceeding should we looked into by the revisional Court. He referred to rule 39 (1) of the Rajasthan Sales Tax Rules which provides that an application for revision under sec 14 (2) shall be in Form S. T. 9. He contended that item 5 in the said form referring to the period of assessment may be more or less than a year and that item 6 provides for the certified copy of the order or orders sought to be revised to be attached. He maintained that item 6 is connected with sec. 14 (2) whereby more than one order can be examined by the Court in one proceeding to avoid multiplicity of litigation. Referring to sec. 14 (2) of the Rajasthan General Clauses Act, 1955 he maintained that the word 'order' includes its plural whereby a single revision against a number of orders would be permissible. He relied on 1963 XIV STC 918 and 1973 WLN (Part I) 132 He argued that when similar proceedings are consolidated, it is all the more necessary to consider one revision in relation to the same party when a single appellate order has been passed. Shri Khetan next pointed out that a D. B. in 1968 RRD 323 held that a single revision petition lies against one appellate order but a D. B. in revision No 517/ 67 Tikam Chand Goel vs. State decided on 16. 5. 68 and a S. B in 1971 RRD 21 and 1972 RRD 100 held otherwise which was unjustified. He argued that as the law does not expressly provide for more revisions than one to be filed, the Court should not hold otherwise as it will also impose financial liabilities for which reliance was placed on 1953 IV STC 114. Shri R. M. Batwara supporting Shri B. K. Khetan further relied on AIR 1953 SC 4 19. He pointed out that under rule 36 the appellate authority had to issue a copy of his order for each of the appeals disposed by him though a common order may have been passed disposing of all the appeals. Referring to AIR 1954 Raj 58 he argued that two appeals arising from the same suit and disposed of by one judgment in which two decrees were prepared and the second appeal was filed from one decree only, failure to file a copy of the other decree was not a sufficient ground for barring the hearing of the appeal on the ground of res judicata. He also relied on AIR 1954 Traveancore Cochin 28 which held that when there were separate appeals from one decree and separate decrees were drawn up in these appeals then the final decree will be all the decrees taken together and one second appeal from the separate appellate decrees was maintainable. These cases relate to Sec. 11 and O. XLI R. 1 C. P. C. Reference was also made to O. II, R. 3 CPC by which the plaintiff may unite in the same suit several causes of action against the same defendant or defendants jointly. Citing 1967 RLW 401 he contended that where two constructions of a fiscal enactment are possible the construction most favourable to the subject should be adopted and enforced rather than the one which imposes a greater burden on him. This case deals with O. VII, R. 11 CPC considered in connection with the Court Fees Act. Citing AIR 1953 Cal. 733 learned counsel argued that any benefit accruing to the State by sec. 14 (2) R. S. T. Act should be eschewed as a construction which permits one to take advantage of one's wrong or to impair one's obligation under a current statute should be discarded. This matter related to the interpretation of statutes considered in conned ion with the West Bengal Premises Rent Control (Temporary Provisions) Act. Shri N. S. Chordia supporting Shri B. K. Khetan and Shri R. M. Batwara asserted that the appellate authority had a right to consolidate proceedings which he had done and had passed a single order disposing of different assessment orders whereby one revision could be filed against a common appellate order. Citing 1955 RLW 355 he referred to the binding nature of proceedings whereby the D. B. ruling in 1968 RRD 323 was binding on other subsequent D. Bs. Citing 1953 ITR 412 Shri R. C. Ghiya appearing as an amicus curiae argued that the separate orders of the assessing authority get merged in a single appellate order against which one revision can be filed. Shri P. K. Jain, amicus curiae contended that when separate appeals are filed and a common order is passed by the appellate Authority disposing of such appeals, then the dealer should get as many copies thereof as the appeals filed by him. The learned Government Advocate argued that a reading of sec. 1462) RST Act shows that separate revision should be preferred against separate orders He pointed out that an order is not defined in the Sales Tax Act but according to Sec. 2 (14) CPC it means the formal expression of any decision of a Civil court which is not a decree Referring to Form ST-9 he stated that item 4 therein means the date of the order sought to be revised i. e. it means a particular order and item 5 refers to the period (and not periods) of assessment and according to Sec. 2 (b) Rajasthan Sale Tax Act the assessment year means a year commencing on the 1st day of April. Sec. 10 (l) (a) shows that assessment and determination of tax due shall be determined after the returns for the year have become due. Sec. 13 which provides for appeals objecting to an assessment etc. shows that a separate appeal must be made for each assessment year. He further stated that item 7 of Form S. T. 9 shows that the disputed turnover or tax due thereon is related to only one year whereby separate revisions have to be filed for each assessment Relying on 1971 XXVII STC 473 he pointed out that each assessment period is distinct whereby a fresh assessment must be made for each such period.
(3.) IT has been strenuously argued by learned Counsel on behalf of the dealers and it has also been mentioned in the referring judgments, that in 1968 RRD 323 a learned D. B. held that a single revision against a common appellate order was competent while in revision No 517/67 Tikam Chand Goel vs. State it was held by another learned D. B. on 16-5 68 that separate revision petitions were necessary in such cases and that the learned Member Shri B. C. Mukerjee was a party to both the said contradictory decisions. IT was further argued before the referring Member or Members as before us that the Supreme Court in AIR 1960 SC 936 held that when a Division Bench disagrees with the view of a previous Division Bench of the High Court the question should be referred to a Larger Bench. IT is interesting to note however that there is no real contradiction at all between the decisions of the two aforesaid learned D. Bs. of this Board mentioned above. In 1968 R R. D. 323 it has been unequivocally stated that one revision is clearly envisaged against one order but in that case on revision was considered to be proper against one single appellate order even though it had disposed of two assessment orders because the appellate authority had considered the assessment period of two years as if the two years formed one period and he took the case to be one and dealt with it as such. These two D. B. judgments have been fully examined by a learned S. B. in 1971 RRD 21, the relevant portion whereof is reproduced below: - 'i have gone through the two DB rulings. In the D. B. which passed the order dated 16. 5. 68, one of the learned Members was Shri B. C. Mukerjee who had also participated in the earlier Division Bench which passed the order dated 20. 11. 67 (i. e. the judgment reported in 1968 RRD 323 ). In the decision dated 16-5-68 the earlier decision dated 20. 11. 67 was duly considered and distinguished with the following observations: "we have perused the decision taken by another D. B. of this Board on 20th November 1967, in case No. 182 Revision Petition Sales Tax/65/aj mer-M/s Pannalal Kankaria & Sons vs. State of Rajasthan. A similar preliminary objection was raised in that case which was over ruled. But the facts of that case were different. In that case although the assessment period was 1957-58 and 1958-59, the learned Deputy Commissioner treated both the periods as one, with one consolidated return, which was then split up into two. The assessment period in that case and the turnover for the 2 year was treated by the Deputy Commissioner (Appeals) as one. There was only one order and no second, though an identical order was passed and placed on record of the second case Thus the Deputy Commissioner (Appeals) treated both the cases as one and dealt with them as such. In the present case the appellate authority has clearly indicated that there are three different appeals but as the grounds of appeals are identical, they will be disponed of by a single order The assessment is also shown separately for each year and a separate though identical impugned order has been placed on each file In view of this, the ruling of the former DB is not applicable to this case. " In view of the above it is clear that as there was no conflict or difference of opinion between the two aforesaid DB decisions which were easily reconcilable, there is actually no disputed question of law for being resolved by this Larger Bench. However as various other ancillary points have also been raised before us in this connection it would be useful if this Larger Bench considers them also. 1963 XIV STC 918 was cited to show that the Supreme Court held that where a single petition is presented to the High Court under Article 226 of the Constitution of India challenging the validity of various assessment orders all together, there is only one proceeding and when an appeal is taken to the Supreme Court from the judgment of the High Court in such a petition, there cannot be more appeals than one and the appellant is liable only to pay one set of court fees and other charges as in a single appeal. This case was also fully considered in 1971 RRD 21 as follows: 'although the second ruling dated 10. 4. 70, cited by learned counsel for the dealer, is by a single learned Member it has to be considered as it refers to a Supreme Court judgment. The Supreme Court judgment is reproduced below in full: - "this is an appeal against the order of the Deputy Registrar directing the present case to be registered as nine appeals and requiring the appellant to pay nine sets of court-fees. The Deputy Registrar had relied on two cases of this Court namely, Lajwanti Sial's case and Kishanchand Chellaram's case. We do not think that these precedents cover the present case. "in Lajwanti's case, there were a number of applications under Sec. 66 (2) of the Income Tax Act for reference of the same question. There were in fact a number of separate references but they were dealt with by one judgment from which the appeal to this Court arose. That was really a case of five appeals for the common judgment must be taken to have been delivered in each of the dif-ferent reference cases. "kishanchand Chellaram's case is also not helpful because there four applications by four different assessees had been made for reference of three identical questions arising in each assessment case under Sec. 66 (1) of the Income Tax Act. Though it appears that there was one order of reference to the High Court and the High Court treated the case as a single case of reference, it could be said that there were in fact a number of references. "the present case however originated out of one petition under Article 226 of the Constitution challenging the validity of various assessment orders, obviously here, there was only one proceeding. It could not be said that there were as many proceedings as there were assessment orders, for the petitioner had by a single petition challenged them all together. When an appeal is taken to this Court from the judgment of the High Court in such a petition, it is impossible to contend that there are more appeals than one. Therefore, the appellant before us is liable only to pay one set of court-fees and other charges as in a single appeal. Action may be taken accordingly by the office, if necessary, by refunding the excess charges made. " 'as will be seen, the ratio decidendi in the Supreme Court case was that there was one petition before the High Court under Art. 226 of the Constitution and it was from the High Court judgment on this single petition that the matter went up to the Supreme Court. Unlike that case, in the present case there was not one appeal but three appeals before the Appellate Authority against whose decision the revision application has been filed. The circumstances are thus clearly different. The present circumstances would appear to be more like those in Lajwanti Sial's case referred to in para 2 of the Supreme Court judgment'. In the instant three cases also there were not one but many appeals before the appellate authority against whose decisions a single revision application had been filed in each case. Air 1953 SC 419 & Air 1954 Raj. 58 cited before us were also cited before the learned D. B. in 1968 RRD 323. In those cases it was held that it in one original suit two appeals were preferred to the lower appellate Court which dismissed the plaintiff's suit the plaintiff need not file two second appeals as one second appeal would be sufficient. It was held by the said learned D. B. that in the cited cases the original suit was one while in the matter before it the original assessment orders were different and related to different years and so the causes of action were different. We agree with this decision and would also point out that the cited cases related to civil matters under the Civil Procedure Code which would not normally apply to Sales Tax cases Air 1954 Travancore Cochin 28 is similar to the cases discussed above. 1973 WLN (Part 1) 132 was cited to show that the whole object behind consolidation of suits made under the inherent powers of the Court under Sec. 151 CPC is to avoid multiplicity of proceedings and to prevent delay etc. It is however important to note that the said decision further provides that by consolidation it cannot be inferred that the Court after consolidation ceases to have jurisdiction to dispose of the consolidated suits separately. It was also observed that though it is true that ordinarily a Court after consolidation should dispose of consolidated suits by one judgment & decrees it does not mean that if separate judgments and decrees are passed they are illegal and void or ineffective. Apart from the fact that this again is a ruling in relation to civil suits under the CPC, it must be recognised that the Dy. Commissioner (Appeals) did not consolidate any appeals but had employed a convenient mode of disposing together by a common order a number of separate appeals having some common features relating to same parties. These separate appeals were preferred against separate assessment orders. It may be noted that under the Rajasthan Sales Tax Act separate assessment orders must be passed for separate years and only in certain cases a biennial assessment could be made by a single order as provided in the proviso to Sec. 10 (a ). There is no provisions for consolidation of proceedings under the Rajasthan Sales Tax Act as there is under the CPC. Therefore the analogy of joinder of causes of action in the same civil suit by a plaintiff against a defendant or joint defendants as provided under Order II, Rule 3 (1) C. P. C. as argued by Shri R. M. Batwara cannot obviously apply to assessments, appeals or revisions under the RST Act. 1967 RLW 401 is hardly relevant herein as it holds that in a case of conflict between the procedural provision like that contained in O. VII, R 11 CPC dealing with the rejection of a plaint and a provision in a fiscal enactment like the Court Fees Act, it is the provision in the latter Act which must prevail over that of the former. Further, if two constructions of a fiscal enactment are possible the construction more favourable to the subject should be adopted and enforced, rather than the one which imposes a greater burden on him. It is obvious, in view of what has been hereinbefore stated and discussed in paragraph 11, that in the instant matters two constructions are rot possible. Similarly with reference to Air 1953 Cal. 733 it would) be quite incorrect to contend that in the instant cases the Dy. Commissioner (Appeals) by passing a common order by which he disposed of separate appeals had taken any advantage of his so-called own wrong because as pointed out above he had merely employed a convenient and time worn manner of disposing separate appeals by a common order and he has committed no wrong whatsoever thereby 1953 ITR XXIII 412 relied upon by Shri R. G. Ghiya held that when an appeal is provided from a decision of a Tribunal and the appeal Court after hearing the appeal passes an order the order of the original court ceases to exist and is merged in the order of the appeal court, and although the latter may merely confirm the order of the trial Court, the order that stands and is operative is not the order of the trial Court but the order of the appeal Court. This judgment was passed in a reference under the Income Tax Act-It will be evident however that the above rule does not help the dealers because the orders of the appellate authority herein though common disposed of separate assessment orders which means in fact that there were as many appellate orders as there were separate assessments. As was held by the S. C. in Lajwanti Sial's case the common judgment must be taken to have been delivered in each of the different cases. From an examination of the common appellate orders of the Dy Commissioner (Appeals) in the instant cases it will be observed that in each such common order the various assessment orders have been separately mentioned or considered and decided. ;