S. K. MAL LODHA, J. - (1.) THE Board of Revenue for Rajasthan, Ajmer ("the Board"), has referred the following question, for the opinion of this Court : " Whether under the facts and circumstances of the case and while dealing with rectification matter, the Board of Revenue was justified in remanding the cases for reassessment under the provisions of section 9 (3) (b) of the Rajasthan Sales Tax Act, and also when the non-applicant assessee had not preferred any appeal or revision against the assessment orders dated 16th September, 1966 ?"
(2.) FACTS first. The assessment of the firm M/s. Sushil Kumar Kamal Kant, Bhadra, was made by the Commercial Taxes Officer (C. T. O.), Hanumangarh, on September 16, 1966, in respect of the assessment years 1961-62, 1962-63, and 1963-64 under the Central Sales Tax Act, 1956 (for short "the CST Act"), and a demand for Rs. 24,739. 58 was created against the firm. As the amount of the demand was not paid, the recovery proceedings were started against Gulab Chand Malpani, one of the partners of the firm M/s. Sushil Kumar Kamal Kant, Bhadra. Gulab Chand Malpani's properties were attached and they were proclaimed for sale. He, therefore, filed objections before the assessing authority that as the firm M/s. Sushil Kumar Kamal Kant, Bhadra, had already been dissolved, the assessment dated September 16, 1966, of the dissolved firm was a nullify and so, the recovery proceedings should be dropped. The C. T. O. vide his order dated December 2, 1972, overruled the objections. He opined that since no appeal or revision against the assessment order has been filed, the assessment order could not be challenged before him. Aggrieved, Gulab hand Malpani filed a revision before the Board, which was registered as Revision No. 5/73. In that revision, an application for staying the recovery was filed. On January 15, 1973, an interim order was passed in his favour. The single Member of the Board, by his order dated February 15, 1973, vacated the ad interim order and rejected the application for stay. A special appeal under section 14 (4a) of the Rajasthan Sales Tax Act, 1954 ("the Act" herein), was filed, which was registered as Special Appeal No. 40/73 S. T. That special appeal was rejected on October 16, 1973. Gulab Chand Malpani did not remain satisfied with the order of rejection of the special appeal. He submitted an application for rectification under section 17 of the Act of the order dated October 16, 1973. The Division Bench of the Board accepted the application, vide its order dated October 4, 1974, and set aside its order dated October 16, 1973, and directed that Special Appeal No. 40/73 be restored to its original number and be listed for regular hearing before a Division Bench. Being dissatisfied, the C. T. O. filed reference application No. 5/75 under section 15 (1) of the Act on March 5, 1975 praying that the Board be directed to refer the following question of law to this Court : " Whether under the facts and circumstances of the cases, the Board of Revenue was justified in remanding the cases for reassessment under the provisions of section 9 (3) (b) of the Rajasthan Sales Act specially when the non-applicant assessee did not prefer any appeal or revision against the assessment orders ?" The Board did not dispose of the application for reference within the prescribed time under sub-section (1) of section 15 of the Act. This led the C. T. O. to move this Court under section 15 (3a) of the Act. This application was registered as Reference Application No. 31/76. Special Appeal No. 40/73 was heard by the Division Bench of the Board and the Board by its order dated August 11, 1975, allowed the special appeal; set aside the order dated February 15, 1973, of the Single Member of the Board and directed the assessing authority to hold an enquiry as to whether the firm had been dissolved and if so, proceed under section 9 (3) (b) of the Act. He also gave a direction that in the meanwhile, the attachment, if any, shall remain. Aggrieved by the order dated August 11, 1975, the C. T. O. submitted an application under section 15 (1) of the Act on December 5, 1975, requesting the Board to refer the question as stated hereinabove. This application could not be disposed of by the Board within the prescribed time, and, therefore, the C. T. O. moved this Court under section 15 (3a) of the Act, which was registered as Reference Application No. 169/76. Both the applications were heard together. This Court, by its order dated January 13, 1977, opined that so far as the question involved in Reference Application No. 31/76 is concerned, that question was also involved in the Reference Application No. 169/76 and, therefore, the question sought to be referred in Reference Application No. 31/76 need not be directed to be referred in that case. It, accordingly, rejected Reference Application No. 31/76. The question which was raised in Reference Application No. 169/76 was reframed by this Court with the consent of the parties, which has already been reproduced hereinabove. Before we produced further, it may be stated be that in the statement of case, the Board has stated that the question can be divided into two parts : (i) Whether in the facts and circumstances of the case the Board was justified in remanding the case for reassessment under the provisions of section 9 (3) (b) of the Rajasthan Sales Tax Act, while dealing with rectification matter ? (ii) Whether in the facts and circumstances of the case the Board was justified in remanding the case for reassessment under the provisions of section 9 (3) (b) of the Act when the non-applicant assessee had not preferred any appeal or revision against the assessment order dated September 16, 1966 ? With regard to the first part of the question, the Board has opined that this question does not survive and so far as the second part of the question is concerned, it was observed that the Division Bench of the Board had decided the second part of the question assuming that the revision filed against the order of the assessing authority dated December 2, 1972, had been disposed of by the learned single Member of the Board by his order dated dated February 15, 1973, inasmuch as although that order really related to the stay matter, the single Member, had expressed a clear opinion in this order that the revision itself was not maintainable. On these premises, a mention has been made in the statement of the case that the Division Bench of the Board has disposed of the special appeal against the order of the single Member dismissing the revision itself. We find little justification in the said observations of the Board in the statement of the case submitted to this Court pursuance of the order dated January 17, 1977, by which this Court directed the Board to refer the aforesaid question for our opinion. Revision No. 5/73, filed by G. C. Malpani against the order dated December 2, 1972, was dismissed on merits by the single Member of the Board November 7, 1974. The Division Bench of the Board, however, allowed special appeal on August 11, 1975, by which the order dated February 15, 1973, of the single Member of the Board was set aside and the case remanded to the assessing authority for enquiry as to whether the firm had been dissolved and if so, to proceed under section 9 (3) (b) of the Act.
(3.) THIS reference was pending on May, 1, 1985, when the Rajasthan Sales Tax (Amendment) Act, 1984 (No. 20 of 1984) ("the Amendment Act"), came into force and so, by virtue of section 13 (11) of the Amendment Act, the reference is deemed to be an application for revision under section 15 of the Act, as substituted by the Amendment Act. We, accordingly, propose to dispose it of as a revision petition. We have heard Mr. K. C. Bhandari, for the assessing authority, and Mr. Dinesh Maheshwari, for the assessee non-petitioner G. C. Malpani at some length, and have carefully considered the orders enclosed with the statement of the case and, in particular, the order dated August 11, 1975, of the Division Bench of the Board, by which the special appeal was allowed. The only contention raised by Mr. K. C. Bhandari, learned counsel for the assessing authority, is that the Division Bench of the Board, erred in law while hearing the special appeal against the order dated February 15, 1973, of the single Member, by which he vacated the ad interim stay order granted vide order dated January 15, 1973, in revision which was filed by G. C. Malpani against the order dated December 2, 1972, passed by the C. T. O. requesting to stay recovery proceedings, on the application that was filed by G. C. Malpani before him on the ground that the assessment has been made against the dissolved firm, M/s. Sushil Kumar Kamal Kant, Bhadra. In other words, learned counsel appearing for the assessing authority submitted that against the order refusing the interim stay, by a single Member of the Board in a pending revision against the order of the C. T. O. declined to drop the recovery proceedings, was not competent to set aside the assessment order dated September 16, 1966, for the assessment year 1961-62, 1962-63 and 1963-64, by which a demand was crated against the firm M/s. Sushil Kumar Kamal Kant, Bhadra, which demand became final, inasmuch as no appeal or revision under the Act was filed against it by the aggrieved party. It was urged that the only subject-matter of the appeal before the Division Bench of the Board was whether the single Member was justified in refusing to pass an ad interim order on February 15, 1973, in the pending revision before him, which was filed by G. C. Malpani against the order dated December 2, 1972, by which he declined to drop the recovery proceedings on the application of G. C. Malpani. This is stoutly opposed by the learned counsel appearing for G. C. Malpani on the ground that as the assessment order was passed against the dissolved firm, M/s. Sushil Kumar Kamal Kant, Bhadra, which in law, was a nullity and as such no recovery of the demand in pursuance of the assessment order could be made from him in his capacity as partner of that firm. The assessment order, contended the learned counsel, against a dissolved firm, being nullity in the eye of law, could be set aside, in special appeal filed by him against the interlocutory order rectifying the stay in revision. ;