TMI Blog1957 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the petition subject to certain observations contained in paragraph 5 of its resolution. 4.. Being dissatisfied with the said order the assessee filed an application (Exhibit F) before the Board for making a reference to the High Court on the following questions, said to be questions of law: (i) Whether the Board of Revenue is competent in law to make observations suo motu when that point is not before it for adjudication? (ii) Whether the so called opportunity given to the petitioner by the Board of Revenue is a reasonable and proper opportunity of being heard as contemplated under sub-section (6) of section 24 of the Bihar Sales Tax Act? (iii) Whether the mere fact of production in Bihar and despatch of goods to the store house of the assessee outside Bihar will amount to a "sale" in Bihar and whether such goods will be leviable to Bihar sales tax? (iv) Whether clause (ii) of the second proviso to section 2(g) of the Bihar Sales Tax Act, 1947, introduced by the amending Act of 1949 makes a transaction a "sale" in Bihar when it is not a sale under the Sale of Goods Act and the Constitution? (v) Whether clause (ii) of the second proviso to section 2(g) of the Bihar Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer will now examine this point and if necessary amend the assessment." The learned advocate, who appeared on behalf of the State of Bihar before the learned Commissioner, stated that he had no instructions. My learned predecessor, however, thought it fit to make certain suo motu modification of the order of the Deputy Commissioner even though no petition on behalf of the State of Bihar had been filed before him and this point had not been raised in the petition of revision filed by the petitioner. It also appears that no previous notice about this point had also been issued to the petitioner. On due consideration of the matter with due deference to my learned predecessor, it seems to me that the point raised is certainly a point of law and that the view taken by my learned predecessor is not free from doubt. A reference on this point should therefore be made to the High Court. The other points raised may substantially be summed up by the question as to whether section 2(g) of the Bihar Sales Tax Act, 1947, is ultra vires of the State Legislature. This point had been recently decided by the High Court in M.J.C. 577 of 1953 (M/s. Tata Iron Steel Co., Ltd. v. The State of Biha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Bihar for consumption was taxable, but the amount of Rs. 16,33,959 was not taxable. The matter was taken in revision by the assessee to the Board of Revenue which accepted the argument of the assessee that the amount of Rs. 7,25,965 and odd representing the value of sugar delivered outside the State of Bihar for consumption was not taxable. But the Board of Revenue considered that there was a patent mistake of law in the terms of the remand order of the Deputy Commissioner which was as follows: "The books of the appellant show that the despatch of above goods was made on consignment basis to his head office at Calcutta. The assessing officer seems to have held such despatches as sales within the extended definition of sale as amended on 1st October, 1948. But mere transfer of goods from one branch to another of a dealer does not appear to me to come under the definition of sale. The assessing officer does not appear to have examined if such despatches were made in pursuance of any previous contract between the appellant and the purchaser or if the transfer was made as a matter of course without any such contract, in the hope of selling the goods from the Calcutta office of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate, in this connection, that the learned advocate for the State of Bihar submitted that he had no instructions on this point, though he agrees that the orders of the learned Deputy Commissioner on this point are not in accordance with the decisions of the Board and that the order should have been worded on the lines of my observations above. Learned advocate for the petitioner contends that it is not open to the Board to raise this point suo motu at this stage, because this is not a point raised by the petitioner in his petition of revision before the Board. Learned advocate also refers to rule 39 of the Statutory Rules, 1949, and contends that this would amount to review of the order of the Deputy Commissioner beyond the period of one year. He also refers to rule 38 of the Rules and contends that in terms of that rule a notice in From XII should be issued to him." Before the Board of Revenue an objection was raised on behalf of the assessee that the Board of Revenue was incompetent to decide a point of law which was not taken in the revision application. The objection was overruled by the Board of Revenue and it was held that under sub-section (4) of section 24 the Board had juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board of Revenue in revision and it is not necessary for this Court to answer this question. We consider that the argument of learned counsel is right and that this question of law does not really arise out of the order of the Board of Revenue in revision dated the 5th of June, 1954. For these reasons we do not propose to answer this question. As regards the first question, the argument put forward by learned counsel for the assessee is that no reasonable opportunity was given to the assessee and so the Board of Revenue has erred in law in revising the order of remand made by the Deputy Commissioner, Sales Tax, with regard to the amount of Rs. 16,33,959 and odd, said to be the value of sugar sent to the head office at Calcutta for sale. It was submitted by learned counsel that the Board of Revenue should have given an adjournment to the assessee and then heard arguments with regard to this point. It was further contended on behalf of the assessee that a notice in Form XII was necessary before the Board of Revenue could exercise the power of revision suo motu and a proceeding as required by the proviso to sub-section (4) of section 24 should have been started. Learned counsel al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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