Commr. of Sales Tax, State of Saurashtra vs Ratilal Nanchand Shah

Shah, C.J.—This is an application by the Commissioner of Sales Tax, State of Saurashtra, u/s 30(2), Saurashtra Sales Tax Ordinance, 1950. The opponent Ratilal Nanchand was assessed by the Sales Tax Officer, Gohilwad, and his appeal against the assessment was dismissed by the Commissioner of Sales Tax on 12-6-1951. The opponent applied in revision to the Sales Tax Tribunal who, by its order dated 23-8-1952, decided in favour of the opponent and held that Bengal Light Matches were not taxable and its decision was communicated to the Commissioner of Sales Tax on 1-7- 1952. On 23-8-1952 the Commissioner of Sales Tax applied to the Sales Tax Tribunal u/s 30(1), Sales Tax Ordinance to refer to the High Court questions of law arising out of the Tribunal''s order, but this application was dismissed by the Tribunal on the ground that it was barred by limitation, the view taken being that Section 28 of the Ordinance, under which Sections 4 and 12, Limitation Act applied in computing the period of limitation, did not apply to the case of an application made u/s 30(1) of the Ordinance and that Section 29, Limitation Act too did not assist the Sales Tax Commissioner. It is against this order that the present application has been made.

Mr. Mehta for the opponent has taken a preliminary objection that this application is not competent because the Sales Tax Tribunal has not refused to make a reference to the High Court oh a consideration of the merits of the case, and therefore its order does not amount to a refusal within the meaning of Section 30(2) of the Ordinance. The contention has no substance because a refusal on a preliminary point is as good as a refusal of the merits of the case, and the aggrieved party has a right to apply to the High Court in the event of a refusal, whatever might be the reasons for the same.

u/s 30(1), Sales Tax Ordinance an application to the Tribunal to refer a case to the High Court is to be made within sixty days from the passing by the Tribunal of the order, and as the order in this case was made on 23-0-1952, the sixty days expired on 22-8-1952, and the application was late by one day on a calculation of the days on the above basis. This position is not demurred to by the learned Advocate-General, who appears for the applicant, but his contention is that the order passed by a Tribunal u/s 30(1) means a communicated order and that inasmuch as the order in the present case had been communicated to the applicant on 1-7-1952, the application made to the Tribunal on 23-8-1952 was within the prescribed period of sixty days. Now the applicant avers that the Tribunal pronounced its order without giving any previous intimation, that it was pronounced on the back of the parties, and that intimation of the order was received by the applicant when a copy was received by him from the Sales Tax Tribunal. The copy seems to have been sent in accordance with Rule 58 of the Sales Tax Rules. Mr. Mehta for the opponent has on the other hand, urged that the hearing of the revision application was made by the Tribunal on 23-8-1952 and the order was pronounced on the same day, and it should therefore be taken that the applicant had notice of the decision, or that he had come to know of it. However there is no denial of the specific averments made in paragraphs 6 and 7 of the present petition, and it may well have been that the order was pronounced by the Tribunal after the parties left, though on the same day. We must therefore take it that the order was passed in the absence of the parties and that the applicant had no knowledge of it until a copy thereof was received by him on 1-7-1952.

The learned Advocate-General has urged that a decision cannot be said to be passed until it is pronounced or published under such circumstances that the parties affected have reasonable opportunity of knowing what it contains, and that therefore the sixty days period ought to be computed from 1-7-1952 and not earlier. This view finds support from the decision in - O.A.O.A.M. Muthiah Chettiar Vs. The Comr. of Income Tax, . There the Petitioner had filed an application before the Commissioner of Income Tax u/s 33-A(2) for revision of an order made by the Income Tax Officer, and as this application was made more than a year after the order of the Income Tax Officer, the Income- Tax Commissioner rejected it in limine on the ground that it was barred by time. The relevant words of Section 33-A(2) are "within one year from the date of the order" which are similar to the words of Section 30(1), Saurashtra Sales Tax Ordinance. In considering the question, whether the one year was to be computed from the date when the order was signed by the Income Tax Officer, or the date when it was communicated to the Petitioner or the date, if there be any, of coming to know of the order, after referring to two earlier decisions of the Madras High Court, - Secy. of State v. Gopisetti Narayanasami 34 Mad 151 (B) and - Swaminathan alias Chidambaram Pillai Vs. Lakshmanan Chettiar and Another, and - ''In Firm of Mohan Lal Hardeo Das Vs. Commr. of Income Tax, , his Lordship the Chief Justice upheld the Petitioner''s contention that the date of the order does not mean the date when the officer passed the order but the date when such order was either communicated to the party or the date when it was pronounced or published in such a manner that the party must be deemed to have notice of it or the date of such pronouncement or publication. In the opinion of the learned Judge the rule laid down in the earlier Madras decisions was based upon a salutary and just principle, namely, that if a person is given a right to resort to the remedy to get rid of an adverse order within a prescribed time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had knowledge of it. This decision was followed in - Bharat Sabaigrass Ltd. Vs. The Collector of Commercial Taxes, , where it was held that limitation starts not from the date of the signing of the order of refusal but from the date of communication of the order to the Petitioner. The point was also considered in - ''34 Mad 151 at p. 154, (B)'', and after a discussion of the subject his Lordship observed:

There is tome difficulty in the matter, but on the whole we think we ought to follow the authorities to which we have referred which hold that the date of a decision is the date of its communication to the parties. A decision cannot properly be said to be passed until it is in some way pronounced or published under such circumstances that the parties affected by it have a reasonable opportunity of knowing what it contains. Till then, though it may be written out, signed and dated, it is nothing but the decision which the officer intends to pass. It is not passed so long as it is open to him to tear up what he has written and write some thing else.

The view taken in - ''Muthiah Chettiar''s case (A)'' and the other decisions above referred to is in accord with principles of natural justice because in fairness to the party, who under the statute has been given the right to dispute the adverse order, limitation should not begin to run until he comes to know of the order, because it is only then that he is made aware of the fact that the decision is adverse to him and that ho has a right to approach the higher authority. It would be different if notice of the pronouncement of the order has been given in advance because in that case if the party does not care to acquaint himself of the order, he does so at his peril. No notice or previous intimation had been given in this case and the order was pronounced after the parties had left. The applicant came to know of it for the first time on 1-7-1952 and the sixty days period will therefore be computed from that date. In this view the application was within time and the Sales Tax Tribunal was not right in rejecting it on the ground of limitation.

Mr. Mehta for the opponent has urged that where the legislature intended that the period of limitation was to run from the date of notice of the order to the party, it has provided for it in terms as for instance in Section 66(1), Income Tax Act which says that within sixty days of the date upon which he is served with notice of an order u/s 33(4) of the Act, the Assessee may apply to the Appellate Tribunal to make a reference to the High Court. Mr. Mehta argued that inasmuch as Section 30(1), Saurashtra Sales Tax Ordinance did not contain a similar provision, it should be taken that the fact of the notice to .the parties was not to be reckoned as a. factor in computing the period of limitation. It seems however that a specific provision for computing the period from the date of the notice to the Assessee is made in Section 66(1), Income Tax Act in order to be consistent with the provisions of Section 33(4) itself which requires the Appellate Tribunal to communicate its order to the Assessee and to the Commissioner. The point made by Mr. Mehta besides does not touch the precise question raised before us, namely, when can an order be deemed to have been made or passed, and that question cannot be decided by a comparison of some other provisions. A similar contention made in - ''Muthiah Chettiar''s case (A)'' was rejected by the learned Chief Justice.

Another contention made by the Advocate- General was that Section 12(3), Limitation Act would apply, by virtue of Section 29, Limitation Act and that the time taken for obtaining the copy of the order would be excluded. In the view we are taking on the first point, this question is not material for a decision of this case and we do not therefore propose to consider it.

In the result we allow the application, set aside the order of the Sales Tax Tribunal and direct the Tribunal to consider the application made to it by the Sales Tax Commissioner on its merits and to decide it in accordance with law. In the circumstances we make no order as to costs.

BAXI J.

I agree.