M. L. JOSHI, J. - (1.) THIS is an application under sec. 15 (3-A) of the Rajasthan Sales Tax Act, 1954, hereinafter called the Act, praying for directing the Board of Revenue, Rajasthan, hereinafter called the Board, to make a reference on the following questions of law: - (1) Whether "durri" is textile within the meaning of item No. 3 of notification No. F. 5 (48) ET/st dated 1-7-58. (2) Whether by issue of notification No. F. 5 (48) ET/st dated 1-7-1958 the insertion of the words including tape, 'niwar' enlarges the scope of exemption given in notification dated 14-12-57.
(2.) THE facts giving rise to this reference, briefly stated are as under: The non-petitioner No. 1 was assessed under the Sales Tax Act for the periods 11. 11. 58 to 31. 10. 59, 1. 11. 59 to 20-10-1960 and 21. 10. 1960 to 7-11-61 by the Sales Tax Officer, Jodhpur City, who was the Assessing Authority. The non-petitioner amongst others deal in "durries". The petitioner levied sales Tax on the turnover in respect of Durries for the aforesaid periods. The non-petitioner No. 1 felt aggrieved by the orders of the assessment passed on March 15, 1963 and March 5, 1964 for the above three periods appealed before the Deputy Commissioner, Commercial Taxes Appeals, Udaipur, hereinafter called the Deputy Commissioner, against the levy of tax on Durries. The Deputy Commissioner accepted the appeals of the non-petitioner No. 1 and reversed the order of assessment for the said periods by his single order dated February 23, 1965, whereby he held that the "durri" being a variety of textiles was not chargeable to sales tax. The petitioner challenged the order of the Deputy Commissioner by way of revision before the Board of Revenue. The Board of Revenue vide its order dated July 3, 1973, upheld the order of the Deputy Commissioner. The petitioner, thereupon, moved the Board of Revenue under sec. 15 (1) of the Act for making a reference to this Court on February 23, 1974 for its answer to the questions mentioned above. The reference application came up before the Board of Revenue on April 19, 1974 but the same was dismissed for non-presence of the petitioner. The petitioner thereupon filed restoration application before the Board of Revenue on May 18, 1974. In the meantime, during the pendency of the restoration application, the petitioner moved this Court under sec. 15 (3-A) on October 22, 1974 for directing the Board to state the case and refer the questions referred to in the application to this Court. It may be pointed out here that during the pendency of the application under sec. 15 (3-A) the application for reference under S. 15 (1) was restored by the Board as the reference was not disposed of within 180 days, as required by sec. 15 (1) of the Act. Mr. Hastimal, the learned counsel for the non-petitioner No. 1 does not dispute that question of law, as mentioned above, do arise out of the order of the Board. He, however, contended that the application under section 15 (3-A) could not lie as the application for reference was not pending when the application under section 15 (3-A) was made before this Court. On the other hand, Mr. S. C. Bhandari, learned counsel for the petitioner has contended the contention raised by Mr. Hastimal. His contention is that the application for reference was dismissed in default illegally as there was no provision of dismissal of the application for reference for non-prosecution. The Board had not refused to make reference as envisaged under Subsection (2) of Section 15 as the application was merely dismissed in default which was subsequently restored. It has been said that there being no provision for dismissal in default in regard to the application of reference under section 15 (1) of the Act, the order of dismissal for default was nonest and should be ignored for all purposes and the application should be deemed to be pending more particularly when the application for restoration had already been made in time and has been restored subsequently.
(3.) IT may be said at the out-set that there is no dispute between the parties that the questions of law do arise as stated in the reference application out of the order of the Board. Therefore, this point need not detain us any longer. The important question however calls for our determination is whether the application is maintainable under Section 15 (3-A) of the Act. In this connection, it will be useful to read Section 15 (1), (2) and (3a) of the Act. They read as under: - "15. State of case to the High Court: - (1) Within one hundred and twenty days from the date of communication in writing by the Board of Revenue of the order passed under sec. 14, the dealer or the assessing authority may, by application in writing, accompanied where the application is made by the dealer, by a fee of rupees one hundred, require the Board of Revenue to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Board of Revenue shall, within one hundred and eighty days of the receipt of such application, draw up a statement of the case and refer it to the High Court. (2) If, for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the applicant may, within sixty days of the communication in writing of such refusal, either.- (a) withdraw his application (and if he does so, the fee shall be refunded); or (b) apply to the High Court against such refusal. (3 ). . . . . . . . . . . . (3-A) If the Board has failed to dispose of the application under sub-sec. (1) within the time prescribed therefor in that sub-section, it shall not thereafter pass any order on that application and the applicant may, within sixty days from the expiration of the time prescribed in sub-sec. (2), apply to the High Court; and if the High Court is satisfied that prima facie the case is a fit one for making the reference, it may require the Board of Revenue to state the case and refer it to the High Court and on receipt of such requisition the Board of Revenue shall State and refer the case to the High Court. If the Applicant does not apply to the High Court within the said period of sixty days, his application under sub-section (1) shall be deemed to have been withdrawn. " We now proceed to analyse relevant provisions of section 15 which are necessary for our purposes. Under sub-sec. (1) of Sec. 15, aggrieved party may move the application in writing along with a fee of Rs. 100/- and require the Board of Revenue to refer to the High Court questions of law arising out of such order. The Board is enjoined upon under this sub-section to dispose of the application within 180 days of the receipt of such application and draw the statement of the case and refer it to the High Court. Sub-section (2) lays down that in case the Board refuses to make such reference as envisaged under sub-section (1), the aggrieved party may, within 60 days of the communication in writing of such refusal, apply to the High Court against such refusal. Subsection (3 A) prohibits the Board to dispose of the application under sub-section (1) if it has not disposed of the same within the time prescribed under sub-section (1) of section 15. In that case, the remedy of the aggrieved party is to approach directly to the High Court without securing an order of refusal on the reference application. ;