TMI Blog1951 (9) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... mbay Sales Tax Act, which as it then stood, would have required the payment of the sales tax and penalty as a condition precedent to the maintainability of the appeal; but instead he applied for revision of the order under Section 22 of the Bombay Sales Tax Act to the Deputy Commissioner (now Collector) of Sales Tax without paying the assessed sales tax or penalty. The Deputy Commissioner in view of Order No. 114 dated 22nd November, 1946, as subsequently amended, transferred the applicant's application for revision to the Assistant Commissioner of Sales Tax. The latter Officer by his order dated 31st July, 1950, rejected the application on the ground that the applicant had "not paid the outstanding amount of tax with penalty.......as the application for revision was irregular under sub-rule(2) of Rule 48 of the Bombay Sales Tax Rules, 1946, read with clause (5) of Form XXV presented under Section 22 of the Bombay Sales Tax Act, 1946". 3.. Against the order of the Assistant Commissioner the applicant filed an appeal before the Collector of Sales Tax who confirmed the order of the Assistant Commissioner and rejected the appeal. The applicant has now filed the present application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now in question (before the Assistant Collector) is not of an order passed in an appeal, where it is obligatory that the revising authority should be satisfied that the tax with penalty if any has been paid. 10.. The learned Advocate-General, however, contended that sub- rule (2) of Rule No. 48 read with Form No. XXV which is referred to in the sub-rule make it obligatory for the applicant to pay the tax and the penalty. Vide Para 5 of it. We must say with due deference that this argument does not appear to us to be correct. From No. XXV which is relied on is a form of application for all kinds of revisions including the one falling within the purview of Rule 48(1). It is next worthy of note that sub-rule (2) lays down that the application shall as far as may be made in accordance with Form No. XXV. The words which we have underlined, make it clear that there is no obliga- tion to fill in every item in the form or comply with the implied requirements of it, unless it is laid down in the Act or the Rules duly framed. This is further clarified by the note at the end of the Form (page 60 of the Bombay Sales Tax Rules as amended upto 1950) which is as follows: "Strike out whichever i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is intended to lighten the task of the tax collector; but, on the other hand, we cannot forget that a wrong and excessive assessment, if beyond the reach of a dealer, will deprive him of the legitimate remedy of representing his case before higher authorities. In the circumstances we think we should put a con- struction on the pertinent provisions so as not to put undue obstructions in the way of the parties concerned. 14.. It was argued that Section 21 indicates that the intention of the Legislature is to insist on a party seeking to appeal or for revision paying up the tax and penalty before he is permitted to have the remedy. The intention of the Legislature is to be gathered from the language used by it, and the fact remains that in Section 22 the condition of prepayment specially mentioned in Section 21 is not repeated. This indicates that for reasons known to it, the Legislature did not intend that way. We may assume from the frame of Rule 48 in that manner that the Government too (to whom the Legislature delegated the power of prescribing rules on the subject) has not chosen to put the condition except where the revision is sought of an appellate order. Where the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to any orders of Government on the subject. The learned Government Solicitor however showed us certain papers from which we found that Government had consented to the delegation. We think that very probably in those initial stages the implications of the delegation were not clear. We also understand that the delegation of powers under Section 22 was initially considered necessary to facilitate the cancellation of certificates already issued. It was very probably for this reason that Government agreed. We next found that the first Circular of the Commissioner dated 22nd November, 1946, conferred revisional powers on Assistant Commissioners upto a subject matter of Rs. 1,250 only. As time advanced it seems the powers of Assistant Com- missioners to hear appeals have expanded and the limit for revisions seems to have gone up to Rs. 2,500 for each quarter. We may, however, be permitted to express our opinion that revisional powers ought to vest only in the highest officer of the Department and the Tribunal and ought not to be delegated to Assistant Collectors. 20.. There is one other point which we wish to bring to the notice of Government. When the Deputy Commissioner of Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do so. For the ordinary rule is that, although a ministerial officer may appoint a deputy, a judicial officer cannot." There is nothing in the Bombay Sales Tax Act or the Rules which expressly authorises the Collector to delegate his revisional powers to subordinate officers. The Collector ought to decide the revision application himself and ought to give a hearing even in cases of summary rejection to the applicant who has the right to make the appli- cation duly registered. Vide Ishwardas Kapoor Sons v. Member, Board of Revenue, Bengal, decided by Gentle and Das, JJ,, and published in Sales Tax Cases, VoI.I (1938-50) pp. 153 156, Calcutta High Court, Ref. No. 21 of 1941: "In my opinion the dismissal of an appellant's appeal or a peti- tioner's petition for revision is an order which adversely affects the appellant or the petitioner as the case may be. It may have the effect of not affecting him more adversely than the order against which the appeal or the petition is preferred, but dismissal of the appeal and the petition summarily in his absence prevents him having an opportunity of putting forward his views and also it has the effect of enforcing the order against which t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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