TMI Blog1953 (1) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... copy of the assessment order dated the 29th September, 1948, is enclosed (Exhibit A). The assessee then filed an appeal before the Commissioner of Sales Tax, (Exhibit B). With certain observations the Commissioner of Sales Tax, by his order dated the 5th April, 1949, remanded the case to the lower court for further action-Copy enclosed (Exhibit C). A revision petition against the above order was filed before the Board on the 2nd June, 1949-Copy enclosed (Exhibit D). The Board after hearing the parties rejected the petition by its order dated the 5th September, 1949-Copy enclosed (Exhibit E). The assessee then filed on the 3rd December, 1949, a petition requiring the Board to refer three questions of law (Exhibit F). The Board heard the parties on the 22nd July, 1950, and rejected the petition as no new points were raised. A copy of the Board's order dated the 22nd July, 1950, is enclosed (Exhibit G). Being dissatisfied with the above order of the Board, the assessee has now moved the Honourable High Court under Section 25(3) and the Board has been asked to state a case on only one point of law out of six points of law raised in the assessee's petition. The Board accordingly refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture and includes a broker or commission agent, who in addition to making contracts for the sale or purchase of excisable goods for other, stocks such goods, belonging to others as an agent for the purpose of sale. The definition of a "dealer" under the Sales Tax Act is as follows: " 'Dealer' means any person who carries on the business of selling or supplying goods in Bihar, whether for commis- sion, remuneration or otherwise and includes any firm or a Hindu joint family, and any society, club or association which sells or supplies goods to its members". So when the petitioner possesses a wholesale dealer's licence under the Central Excise Department, he cannot claim to be not a dealer under the Sales Tax Act. That being so, it was his duty to have registered under the Sales Tax Act. If he was doubtful about his position he should have asked for clarification under Section 18 of the Sales Tax Act, 1944, from the Commissioner. The onus is on him to take out registra- tion. Having not done so, one cannot say that the penalty imposed is unjustified. Baldeva Sahay and Kanhaiyaji, for the assessee. Gopal Prasad (for the Advocate-General), for the State. JUDGMENT RAMASW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g out of such order". Section 21(2) provided: "If, for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the appli- cant may, within thirty days of such refusal, either (a) withdraw his application (and if he does so, the fee paid shall be refunded), or (b) apply to the High Court against such refusal". Section 21(3) is also important it states: "If upon the receipt of an application under clause (b) of sub- section (2), the High Court is not satisfied that such refusal was justified, it may require the Board of Revenue to state a case and refer it to the High Court and on receipt of such requisition the Board shall state and refer the case accordingly". On behalf of the assessee Mr. Baldeva Sahay contended that the case was governed by the Bihar Act XIX of 1947 and that under Section 25(1) of this Act the assessee may apply to the Board of Revenue for making reference to the High Court within ninety days from the date of the order passed by the Board of Revenue. In this view of the matter, Mr. Baldeva Sahay submitted that the application of the assessee was not barred by limitation. In my opinion the argument of Mr. Baldeva Sahay cannot be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax, Madras(2), is also relevant. In that case the assessee did not make an application to the Income-tax Commissioner under Section 66(2) of the Income-tax Act to refer a point of law to the High Court within one month of the passing of an order under Section 31 or 32 of the Act. It was held by the Special Bench that the assessee can- not ask the High Court to direct the Commissioner to refer such a question to the High Court and that neither Section 66(1) of the Indian Income- tax Act nor Section 45 of the Specific Relief Act empowered the High Court to direct the Commissioner to refer such a question under such circumstances. For the reasons which I have stated I think that the preliminary objection must succeed and the Board of Revenue was justified in refus- ing to make reference. It follows that the case should never have been stated under Section 21(3) and the High Court is not compelled to ex- press its opinion on the question of law referred. The assessee must pay the cost of the reference. Hearing fee is assessed to be a sum of Rs. 200 which is payable by the assessee. SARJOO PROSAD, J.-I agree that the preliminary objection taken by Mr. Gopal Prasad for the Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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