- (1.) G. C. Kasliwal, Advocate General and Daluram Sharma, Government Advocate for Non-petitioner This is a revision against the order of the Sales Tax Officer, 'b' Circle, Jaipur dated the 2nd April, 1964.
(2.) THE brief facts of the case are that the Sale Tax Officer, 'b' Circle, Jaipur issued a notice to the petitioner under sec. 7-A of the Rajasthan Sales Tax Act for provisional assessments the returns were not filed by the petitioner. THE petitioner raised a preliminary objection before the Sales Tax Officer that the Sales Tax Officer 'b' Circle, Jaipur is not competent to issue such notices as according to sec. 26 (2) (f) of Rajasthan Sales Tax Act, 1954 no rules have been framed by the Government for the purposes of appointment, powers and duties for the enforcement of the said Act and that no notification has been issued by the competent authority either under sec. 2 (b) of the Act or under rule 3 of the Rajasthan Sales Tax Rules creating (B) Circle and conferring jurisdiction for the enforcement of the provisions of the said Act. THEse preliminary objections were over-ruled by the Sales Tax Officer, 'b' Circle, Jaipur vide his impugned order dated 2. 4. 64. Aggrieved by the above order of the Sales Tax Officer, 'b' Circle, Jaipur dated 2. 4. 64 the petitioner has come up in revision before the Board of Revenue. The learned counsel for the petitioner has argued that the appointment of Sales Tax Officer, Circle 'b' Jaipur has not been done under sec. 2 (b) of the Rajasthan Sales Tax Act, nor the circles have been created under rules 3 and 4 of the Rajasthan Sales Tax Rules which is mandatory. He has therefore contended that the Sales Tax Officer, 'b' Circle, Jaipur is not competent to make any assessment of the petitioner under Rajasthan Sales Tax Act. The learned Advocate General has argued that according to sec. 2 (b) of the Rajasthan Sales Tax Act the definition of the "assessing Authority" is as follows: - "assessing Authority" means any person authorised by the State Government to make assessment of tax under this Act. " His contention is that any person authorised by the State Government can make assessment of tax under the Rajasthan Sales Tax Act. That is, Shri Govind Narain was authorised by the Government to make assessment as he was appointed as Sales Tax Officer, 'b' Circle, Jaipur vide Government order No. F. 3 (l) Apptts (A)/63 dated 5th September, 1963. He has further referred to rule 2 (n) of the Rajasthan Sales Tax Rules according to which the definition of the Sales Tax Officer has been given as follows : - "sales Tax Officer" means a Sales Tax Officer appointed by the Government and includes an Assistant Sales Tax Officer". He has argued that the function of the Sales Tax Officer and the Assistant Sales Tax Officer is to assess the sales tax of (he concerned persons within their jurisdiction according to Rajasthan Sales Tax Act. Thus the Sales Tax Officer is the 'assessing authority' as described in sec 2 (b) of the Act. Regarding jurisdiction he has referred to rule 3 of the Rajasthan Sales Tax Rules according to which the Sales Tax Officer for the area within his jurisdiction as fixed by "the Commissioner" shall be the assessing authority for that area, and such area shall be called his "circle". His contention is that Jaipur city as a whole is a circle and Shri Govind Narain was appointed as Sales Tax Officer, Jaipur, he had the jurisdiction over the petitioner to make assessment. He has further referred to rule 4 according to which where there are more than one Sales Tax Officer in a circle, their respective jurisdiction and the distribution of business amongst them shall be such as may be fixed by the Commissioner. In this connection he has stated that since there were two Sales Tax Officers in Jaipur the distribution of business was done amongst them as Circle 'a' and Circle 'b' on the basis of the circles 'a' and 'b' created for the Assistant Sales Tax Officers vide notification No. F. 228 (Misc) / ST / 61 / 2676 dated 13. 10. 61 issued by the Commissioner Excise & Taxation, Udaipur. He has however conceded that Circles 'a' and 'b' were not created for the Sales Tax Officers. The contention of the Advocate General is that by the doctrine of incorporation by reference the Government made use of the Circles 'a' and 'b' described by the Commissioner, Excise and Taxation, Udaipur vide his notification No. F. 228 (Misc)ST/61/2676, dated 13. 10. 61 for Assistant Sales Tax Officers. The Advocate General has argued that in view of the above facts the appointment of Shri Govind Narain as Sales Tax Officer, 'b' Circle Jaipur by the Government in Appointments Department vide their order No. F. 3 (l) Apptts (A)/63 dated 5th September, 1963 is quite valid and the Sales Tax Officer, 'b' Circle, Jaipur is the competent assessing authority to make assessment of the petitioner under the Rajasthan Sales Tax Act. The counsel for the petitioner has argued that the Government vide their order No. 3 (1) Apptts (A)/63 dated 5th September, 1963 has appointed Shri Govind Narain Sharma as Sales Tax Officer, 'b5 Circle, Jaipur, but the powers to make assessment under the Rajasthan Sales Tax Act have not been conferred on him by any order. He has further argued that Jaipur Circle has not been divided in Circle 'a' and 'b' for the Sales Tax Officers as the definition of special circle has been given for the Sales Tax Officer, Special Circle. He has contended that the definition of "wards" has been given for Assistant Sales Tax Officers vide notification No. F. 228 (Misc) ST/61/2676, dated 13. 10. 61. His contention is that similar distribution of business defining jurisdiction for Circle 'a' and 'b' for Sales Tax Officers has not been done so far, nor the division of circles made for Assistant Sales Tax Officers has been adopted for the Sales Tax Officer by any adaptation order so far. Not only this, only wards have been created for Assistant Sales Tax Officers and not the circles. So the definition of wards cannot be adopted for distribution of circles. He has therefore argued that Shri Govind Narain had no jurisdiction to make assessment of Sales Tax of the petitioner as contemplated by the non-petitioner. Under rule 3 and 4 of Rajasthan Sales Tax Rules it was the Government who could decide the jurisdiction and the distribution of the business amongst Sales Tax Officers before the 6th July, 1963. The Government has substituted the word 'commissioner' in place of 'government' in rules 3 and 4 of the Rajasthan Sales Tax Rules vide their Notification No. F. 5 (4)FD/rt/63, dated 6th July, 1963. He has therefore contended that the Commissioner was not competent to define the jurisdiction for the Sales Tax Officer and/or of Assistant Sales Tax Officers before 6th July, 1963, which vitiates the order of Commissioner creating wards even for Assistant Sales Tax Officers. I have heard both the counsel for the parties and gone through the entire record. It is an admitted position as per rule 3 that the Sales Tax Officer is the assessing authority for the area within his jurisdiction as fixed by the Commissioner and such area shall be called his Circle. Shri Govind Narain was appointed as Sales Tax Officer, 'b' Circle, Jaipur vide Government of Rajasthan, Appointments Department, order No. F3 (A) Apptts (A)/63 dated 5th September, 1963, but the territorial jurisdiction of 'b, Circle was never defined for Sales Tax Officer either by the Government or by the Commissioner Rule 3 is very clear and explicit and the words "within his jurisdiction" are very significant. In the appointment order of Shri Govind Narain Cricle 'b' Jaipur has been described as the jurisdiction of the incumbent. But this 'b' Circle has not been defined anywhere; nor the territorial jurisdiction of 'b' Circle prescribed for Assistant Sales Tax Officers by the Commissioner has been adopted by any adaptation order for Sales Tax Officers which is mandatory as per rule 4. Even for Assistant Sales Tax Officers 'wards' have been created and not the Circles, so the order creating wards for Assistant Sales Tax Officers cannot be adopted for Sales Tax Officers. The Advocate General during the final round of his arguments on 5th February, 1965 relied on two documents viz: 1. Commissioner No. F. 228 (Misc)ST/61/2676, dated Udaipur 13th October, 1961. 2. Commissioner No. F. 228 (Misc) ST/62/30, dated Udaipur 14th February, 1962. Both of these documents are purpored to be signed by the Commissioner and are issued in exercise of powers conferred under rule 4 of the Rajasthan Sales Tax Rules, 1955. It would be significant to note that both these documents create wards and not circles and they define the area of the particular wards for the Assistant Sales Tax Officers. The learned Advocate General has further conceded that in rule 3 and 4 of Rajasthan Sales Tax Rules, 1955 the powers delegated on the Commissioner are only from 6th July, 1963 on which date the said powers were vested only in the Government and they came to be delegated on the Commissioner on and from 6th July, 1963 by substitution and amendment of Rules 3 and 4 vide notification O. F. 5 (41) FD/rt/63 dated 6. 7. 1963 published in Rajasthan Gazette part IV (C) dated 6. 7. 63. The power to create circles only vests in the State Government exclusively under rule 3 which is accepted by the learned Advocate General and which is mandatory. The learned Advocate General has not been able to show any document or notification or order of the Government in which 'b' circle was ever created. Obviously therefore the learned Advocate General has argued to hold that by the invocation of the doctrine of reference by incorporation the Appointment Department of Government of Rajasthan should be deemed to have incorporated in its posting order of Shri Govind Narain Sharma the creation of a circle for him with reference to the two notifications dated 13. 10. 61 and 14. 2. 62 creating wards for the Assistant Sales Tax Officers. I feel that this contention of the learned Advocate General is hardly tenable. The doctrine of reference by incorporation applies where the legislation requires it to be so done. This is a doctrine used by the legislative machinery to do away with the necessity of once again repeating the provisions in its entirety in the subsequent legislation. A clear example of its applicability can be found when a particular delegated authority exercises the powers delegated to it - it refers to the particular provisions and the legislation under which the powers are being exercised and thus, this doctrine is applicable in such cases only, where there is an unmistakable reference to a particular earlier legislation, that can deem to have incorporated the earlier legislation within itself. Since there is no indication whatever that the wards created by the Commissioner for the Assistant Sales Tax Officers are meant for Sales Tax Officers and since the notification creating these wards were not even referred to in the order appointing Shri Govind Narain Sharma as Sales Tax Officer, 'b' Cirlce, the doctrine of reference by incorporation can hardly be applicable. My attention has also been drawn where Government has created a special circle for only those class of dealers whose total annual sales exceed the pecuniary limit given in the notification creating the special circle. A careful scrutiny will show that the area has been clearly demarcated for the special circle and the pecuniary jurisdiction starts with the class whose minimum sale annually is above the limit indicated therein. If a special circle can be created in this particular manner, I see no reason why circle 'b' should not be properly defined for the convenience of the general public. The learned Advocate General has conceded that no rules u/sec. 26 (2) (f) for the purpose of appointment, duties and powers of officers appointed for the purpose of enforcing the provisions of the Rajasthan Sales Tax Act, 1954 were ever made by the Government and further conceded that Rule 3 of the Rajasthan Sales Tax Rules was mandatory and authorised only the Government till 6. 7. 1963 to create circles by defining the area and that under Rule 4 the Additional Commissioner had absolutely no power as also under Rule 3. In my considered view, therefore, the Sales Tax Officer 'b' Circle, Jaipur was not properly appointed according to rules and had no jurisdiction to assess the petitioner. The revision is accepted and the order of the Sales Tax Officer, Jaipur dated 2. 4. 64 is set aside. The relevant extract be forwarded to Secretary in Finance Department for taking necessary action. .;