Excise and Taxation Commissioner vs Mehar Singh Prem Singh

Sukhdev Singh Kang, J.—At the instance of Excise and Taxation Commissioner, Haryana the Sales Tax Tribunal Haryana has referred the following question for our opinion:

"Whether the appellate jurisdiction of Tribunal u/s 39 of the Haryana General Sales Tax Act 1973 extends to the order passed by the Excise & Taxation Commissioner Haryaaa u/s 44 of the Act".

The facts lie in a narrow compass. Excise & Taxation Commissioner Haryana passed order dated July 12, 1979 u/s 44 of the Haryana General Sales Tax Act, (973 (hereinafter called the Act) whereby he ordsred withholding refund of two amounts of Rs. 11,451/- and Rs 2 195/- which had become due to the assessee: on amount of acceptance of his appeal against assessment orders for the year 1974-75. The assessee went up in appeal before the Sale Tax Tribunal. It was partly allowed. The impugned order was set aside and the case was remanded to the Excise & Taxation Commissioner, Haryana for a decision afresh. The Excise & Taxation Commissioner made an application u/s 42(1) of the Act and desired reference of the question ex- tracted in the opening part of the judgment for opinion of this Court. The Tribunal accepted this application and has referred the question sought to be referred.

At the threshold, a preliminary objection has been raised on behalf of the respondent that the question that was framed and on which the opinion of this Court is sought does not arise out of the order of the Tribunal. The Tribunal had decided the appeal on merits. No objection regarding maintainability of the appeal filed by the assessee was raised before the Tribunal. The observations in the reference order that "obviously, in passing the impugned order, though not clearly under cored, the Tribunal took the view that the jurisdiction of the Tribunal u/s 39 of the Act includes the, order passed u/s 44 of the Act also" are not supported by the clear language of the brief order dated 16th February, 1981 of the Sales Tax Tribunal partly allowing the appeal of the lassessce.

We have beared learned counsel for the parties and perused order dated 16th February, 1981 passed by the Tribunal. It is a short order consisting of two paras There is not even a whisper of the objection that the appeal was not competent. There is no reference whatsoever to the maintainability of the appeal. The observations in the reference order quoted above are not supportable from the contents of the order dated 16th February, 1981. It is clear that this question was not raised before the Tribunal and it did not at all address itself to this question. It has not in any way expressed that it had the jurisdiction to entertain appeals u/s 39 of the Act even against orders passed by the Excise & Taxation Commissioner in exercise of the jurisdiction conferred on him u/s 44 of the Act. In similar circumstances, the Final Court observed in Commissioner of Income Tax, West Bengal and Another Vs. George Henderson and Co. Ltd., as under :-

"It is true that the court is bound to proceed normally on the findings of fact which are mentioned in the statement of the case. But if the statement of the case does not correctly summarise or interpret the finding recorded in the order of "the Appellate Tribunal which has been made part of the case, the court is entitled to look at-the order itself in order to satisfy itself what was actually the finding of the Appellate Tribunal".

The afore-mentioned observations of the apex court fully cover the point. The reference order has not faithfully and correctly summarised and interpreted the findings recorded in the order of the Tribunal dated 16th February, 1981, passed on the appeal of the respondent It is well settled that if a question referred for the opinion of the High Court does not arise, out of the order of the Tribunal, this Court is not obliged to answer such a question, in this regard it was observed in Commissioner of Income Tax, West Bengal, Calcutta Vs. Smt. Anusuya Devi, .

"Therefore, it can not be held that at the hearing of a reference pursuant to an order calling upon the Tribunal to state case, the High Court must proceed to answer the question without considering whether it arises out of the order of the Tribunal, whether it is a question of law, or whether it is academic, unnecessaty or irrelevant".

A similar view was taken, though in a slightly different contest, by a Full Bench of this Court in Highway Motors Pvt. Ltd. v. The State of Haryana, 51 S.T.C. 133. This proposition of law was reiterated by a Division Bench of the Bombay High Court in Commissioner of Income Tax Vs. Braithwaite and Co., .

In view of the settled position of law we decline to exercise our advisory jurisdiction and answer the question referred to us.