TMI Blog1953 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... id two revisions: (a) Whether, in the circumstances of the case, the respondent was right in holding that the fact that the line of business of the petitioner got considerably reduced during 1123 and that the diversion of the capital employed in the business to his new business of money-lending does not help to fix the turnover for the year 1123; (b) Whether, in the circumstances of the case, the respondent was right in not considering the readiness and the willingness of the peti- tioner to obtain the licence for the year 1123, and whether his findings are vitiated by the circumstance that he entirely ignored the aspect that the passing out of a year does not take away the jurisdiction to receive the fees and issue a licence with retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date prescribed therefor the licence shall not ordin- arily be granted or renewed with effect from a date prior to the date of the receipt of the application and shall expire on the last day of the year in which it is granted or renewed: Provided that the Commissioner of Sales Tax may, in any deserv- ing case, direct the Sales Tax Officer to accept an application for the grant or renewal of a licence received after the prescribed date and to issue the licence with retrospective effect on the applicant's paying a penalty such sum not exceeding nine times the licence fee in addition to the usual licence fee, as may be fixed by the Commissioner of Sales Tax." The petitioner is a dealer in bullion and the question relates only to the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, however, the officer forwarded the application made by the petitioner to the Commissioner who passed orders on 1st August, 1950, rejecting licences for the years 1123 and 1124 and granting one for the year 1125 as in his view the retrospective effect with which a licence could be issued under the rules could not go further back than the year in which the application is made. We do not feel called upon to decide one way or the other as regards the correctness of the Com- missioner's conclusion upon this point. It is sufficient to say that the Com- missioner has jurisdiction to decide the question and he did decide it against the applicant and the licence applied for was refused. The circumstance that the decision is erroneous, assuming it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney-lending. But this finding of the Income-tax Officer does not in any way help to fix the turnover for the year in question". These sentences appear in the order of the Commissioner in the second revision petition. If the order of assessment did contain the statement above extracted, then certainly a question of law arises because when a part of the capital used for the bullion business had been diverted to the money-lending business, the turnover of the bullion business must have been reduced. 2 minus 1 cannot continue to be 2. It is obvious. confronted with this situation, the learned Advocate-General turned to the order of assessment and that order was seen not to contain the above statement or anything to that effect. The Officer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two proceeded simultaneously, the argument might perhaps have had some force. The burden of proving a claim for exemption from tax is on the assessee (see Commissioner of Income-tax, West Bengal v. Calcutta Agency Ltd.(1)). That onus can, in the present case, be discharged only by showing that the assessee had in fact been granted a licence. 7.. Learned counsel for the petitioner then stated that the view of the Commissioner that he is not competent to grant a licence with retros- pective effect for any year anterior to the year in which the application was made, is erroneous and that the limit of retrospectivity to which the competency of the Commissioner extends is a question of law which could be directed to be referred. As already sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Sales Tax shall, within sixty days of the receipt of such application, draw up a statement of the case and refer it with his own opinion of the question of law to the High Court: "Provided that a reference shall lie from an order under Section 18 only on a question of law arising out of that order itself, and not on a question of law arising out of a previous order revised by the order under Section 18. "Provided further that, if in exercise of his power of revision under Section 18, the Commissioner of Sales Tax decides the question, or if the (1) [1951] S.C.R. 1008; 19 I.T.R. 191. Commissioner of Sales Tax rejects the application on the ground that it is time-barred or otherwise incompetent, or if, in exercise of his powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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