S. N. BHARGAVA, J. - (1.) THIS is a reference under s. 15 of the Rajasthan Sales Tax Act 1954 (hereinafter referred to as the Act) by which the Board of Revenue has referred the following question of law for opinion of this Court: "whether under the facts and circumstances of the case the Special Appear presented by Shri Baluram Sharma D. P. was improperly presented ?"
(2.) FACTS, briefly stated, relating to the disposal of this reference may be stated as under:- Assessing Authority (A. C. T. O. , Beawar) determined the tax liability of the respondent M/s Poonam Chand Uttam Chand of Beawar. The assessee went in appeal to the Deputy Commissioner (Appeals) Commercial Taxes, Ajmer against the order of the Assessing Authority which was allowed. Against this order the Deputy Commissioner (Appeals) Commercial Taxes, Ajmer, the State of Rajasthan moved an application under s. 14 (1) before the Board of Revenue for revising the said order. A single Member Bench of the Board of Revenue upheld the order of the Deputy Commissioner (Appeals) Commercial Taxes, Ajmer, and rejected the revision petition by his order dated Jan. 18,1973. The Assessing Authority preferred a Special Appeal under s. 14 (4) (A) of the Act against the order of the single Member Bench. A preliminary objection was raised before that Bench that there was no proper presentation of the Special Appeal before the Board as the same had been presented by Shri Balu Ram Sharma, who did not have a valid letter of authority or a 'vakalatnama' authorising him to act on behalf of the appellant. The Division Bench accepting this contention dismissed the appeal by its order dated June 10, 1974. The Assessing Authority filed an application under s. 15 (1) of the Act seeking a reference to this Court on the following question of law:- "whether under the facts and circumstances of the case the Special Appeal presented by Shri Baluram Sharma D. P. was improperly presented ?" Before the said reference application could be decided by the Board the prescribed period of 180 days expired. Therefore, the Board did not consider it necessary to make a reference to the High Court. Thereupon the Assessing Authority filed a reference application under s. 15 (3) (A) of the Act before the High Court seeking direction to the Board to state and refer the above question of law and the Hon'ble High Court by its order dated September 23, 1976 passed in D B. Civil Sales Tax Reference Application No. 173/75 directed the Board of Revenue to refer the said question for its opinion and thereupon the Board of Revenue has submitted the statement of case by order dated May 20, 1977 referring the above noted question for the opinion of this Hon'ble Court. To complete the narration of facts it will be necessary to mention here that the memo of Special Appeal filed before the Revenue Board was signed by Assessing Authority (Asistant Commercial Taxes Officer Ward B, Beawar) and the said appeal was accompanied by an affidavit of the Assessing Authority wherein it has been mentioned that the Assessing Authority had contacted the Government Advocate Shri D. R. Sharma and he after studying the case gave him the draft for the Special Appeal and thereafter Special Appeal was filed by Shri Balu Ram Sharma on May 17, 1973. Before we proceed to discuss the question of law, it will be profitable to quote here s. 14 (4 A) which runs as under:- " (4 A ). Subject to any rules that the Government may make in that behalf, a party aggrieved by an order of a single Member shall have the right to make a special appeal to a bench consisting of two or more members of the Board within (ninety days) from the date of (communication of) the order of the single member. " Rr. 2 (b) and 34 of the Rajasthan Sales Tax Rules run as under- " (b ). "agent" means a person authorised in writing to appear on behalf of a dealer or person before any Sales Tax Authority;" "34. Presentation of appeal.- The memorandum of appeal shall be presented by the appellant or his pleader or his agent to the appellate authority or such member of his staff as the appellate authority may appoint in that behalf, or may be sent by registered post addressed to the appellate authority. " Our attention has been drawn to State of Raj. vs. M/s Gorilal Ajmera (1) where the Board of Revenue relying on Lutfar Rahman vs. State of West Bengal (2) has held that the Government Pleader need only intimate to the Court that he is representing the Government in the proceedings before the Court. No stamp power or 'vakalatnama' is required to be filed. Our attention was also drawn to a Division Bench decision of this Court reported in the Commercial Taxes Officer Special Circle, Kota vs. M/s Ayurved Sewashram (P.) Limited, Udaipur (3) wherein it was observed as under:- "at some earlier hearing a preliminary objection was raised that the application was not properly presented as it was not accompanied by a Vakalatnama in favour of the Government Advocate authorising him to present the application. In consequence of this preliminary objection the Government Advocate filed a Vakalatnama and prayed that non-submission of Vakalatnama was a mere curable irregularity and should be condoned. After hearing the counsel for the parties we waive the irregularity and treat the presentation of the application as a valid one. " Learned counsel for the Department has drawn out attention to C. T. O. Spl. Circle I vs. Sanghi Oxygen Co. (4) wherein the Board of Revenue relying on Shiv Narain vs. Deputy Director (C) (5) has held that since the notices were issued of the Special Appeal to the assessee therefore the Court should be deemed to have waived the irregularity. This authority of the Revenue Board was relied again by the Board of Revenue in C. T. O , Spl. Circle II, Jaipur vs. M/s Indl. Chem. & Plastics (6) and the preliminary objection raised therein that the revision was not presented by the Assessing Authority was rejected. Learned counsel for the Assessee has drawn out attention to the earlier decision of the Board of Revenue in State of Raj. vs. M/s Gemini Murti Kalakar (7) wherein the Revenue Board has taken the view that the presentation of the appeal should have been made by the appellant or his Pleader or his Agent having authority in writing and since U. D. C. of C. T. Department had no authority in writing as required by r. 2 (b) and, therefore, he was not the proper agent. Hence memo of appeal filed by him was not properly presented. Learned counsel for the Department drew out attention to Upper India Sugar Mills vs. Commr. of Sales Tax (8) wherein the Division Bench of the Allahabad High Court held "where a person who presented a revision application of the Commissioner of Sales Tax was one employed by the Commissioner and was acting in the ordinary course of his duties when he delivered the revision application. The revision was properly presented as the Peon was held duly authorised by the Commissioner to present the revision application. A reference to r. 34 will show that the appeal could be presented by the appellant or his Pleader or his Agent or may be sent by registered post addressed to the Appellate Authority which clearly show that the legislature never attached any importance or any sanctity for presentation of the appeal personally because it could be sent even by registered post. Moreover in the present case the memo of appeal was signed by the Assessing Authority himself after consulting Mr. Balu Ram Sharma who had filed the appeal which was sent to him by the Assessing Authority duly signed. Thus keeping all these in view, it cannot be said that the Special Appeal presented by Balu Ram Sharma D. P. was improperly presented. It will be worthwhile to note here that the Revenue Board also in the later decision in M/s Khandelwal Enterprise vs. A. C. T. O. Ward I (9) has taken the view that the defect of filing of memorandum of appeal presented by the person who was not authorised in writing as required by r. 2 (b) of R. S. T. Rules is curable by allowing the person presenting the appeal to submit an authority at a subsequent date as soon as the defect is brought to his notice. In the result, the question of law is answered in the negative in favour of the Department and against the Assessee. . ;