TMI Blog1957 (9) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... red by limitation and, therefore, there can be no question of entertaining the present application. It is also urged by way of a preliminary objection that, even assuming that the application for reference made to the Tribunal was within time, the present application to this Court is also barred by limitation. But since if the first objection is valid, viz., that the application for reference to the Tribunal was itself barred by limitation, obviously the second preliminary objection does not survive, we will proceed to consider the first objection. On this objection, the first question that we are called upon to determine is: From what date does the period of limitation prescribed for making an application for statement of a case to the High Court begin to run-whether it is from the date when the revision application is dismissed by the Tribunal or whether it is from the date when the party aggrieved by the order has knowledge of the said order or the order is communicated to it? Now, the language used in section 34 of the Act of 1953, which corresponds to section 23 of the Act of 1946, is that the starting point for the period of limitation will be "from the passing by the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the Tribunal to communicate their order to the parties concerned, and if there was, in our opinion, until the decision is so communicated, time for applying for a statement of the case to the High Court does not begin to run. Now, Mr. Palkhivala has relied on rule 42 of the Bombay Sales Tax (Procedure) Rules, 1954, which is in these terms: "Supply of copy of order to the appellant or applicant and the officer concerned.-A copy of the order passed in appeal or revision shall be supplied free of cost to the appellant or applicant or the person affected thereby and another copy shall be sent to the officer whose order forms the subject matter of the appeal or revision proceedings." (1) (1924) I.L.R. 47 All. 332. It appears to us that this rule does cast an obligation when an order is passed in appeal or revision to supply a copy to both the parties; and since the decision is not given in the presence of parties, there being a requirement that the order shall be communicated to the parties, time for presenting an application for a reference to the High Court does not being to run until the copy is supplied to the party aggrieved. On this part of the case, we must state that the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn to these provisions, as a mere matter of history, we must notice that before the Act of 1953 there was in force Bombay Ordinance No. III of 1952 which was known as the Bombay Sales Tax (No.2) Ordinance, 1952. This Ordinance, by section 50 thereof, repealed the Sales Tax Act of 1946 as from the appointed day, which was defined by section 2, sub-section (3), as 1st November, 1952; and whilst repealing the Act of 1946, section 50, sub-section (2), provided as follows: "But nothing in this Ordinance or any repeal or amendment made thereby shall affect or be deemed to affect-... (ii) any legal proceedings or remedy pending in respect of any right, title, interest, obligation or liability or anything done or suffered before the appointed day and any such proceedings shall be continued and disposed of, as if this Ordiance had not been passed; (iii) the recovery of any tax or penalty which may have become payable under any of the Acts so repealed before the appointed day and all such taxes or penalties or arrears thereof shall be recovered, as the case may be, as if this Ordinance had not been passed." Now, the Act of 1953, by section 48, sub-section (1), repealed the Act of 1946 from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there had been no provision in the Act of 1953 in terms of section 48, sub-section (2). That position would have arisen by reason of section 7 of the Bombay General Clauses Act, 1904, which deals with the effect of repeal of an Act, and the relevant part of that sub-section for the present purpose is as follows: "Where this Act, or any Bombay Act made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not....... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act had not been passed." Therefore, the position would have been, so far as legal proceedings were concerned, that they could have been "instituted, continued or enforced". Now, when we turn to the provisions of section 48(2)(ii) of the Sales Tax Act of 1953, which deals with legal proceedings pending on 1st November, 1952 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) and (iii) of section 48, sub-section (2), deal with these two different classes of liability-one a liability in respect of which a proceeding was pending and the other in respect of a liability where no proceedings had been initiated. This conclusion is strengthened by reason of the fact that to interpret the expression "legal proceeding" in section 48, sub-section (2)(ii), in the way in which Mr. Palkhivala invites us to interpret it, namely, as proceedings in a Court of law, would be straining the language employed by the Legislature and indeed not giving effect to it. "Legal proceeding" in its normal connotation can only mean a proceeding in accordance with law, and there can be no doubt that assessment proceedings under the Sales Tax Act are such proceedings. What then is the justification for limiting the meaning of the expression "legal proceeding" in section 48, sub-section (2)(ii), to proceedings in a Court of law? When one looks at it still more closely, the only proceedings other than assessment proceedings which are contemplated by the Act of 1946 are proceedings in relation to offences and penalties under section 24 of the Sales Tax Act of 1946. Sub-section (1) sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or be deemed to affect-....... (ii) any legal proceeding or remedy in respect of any such right, title, obligation or liability". In our opinion, this proviso in no way enables us to decide the true meaning of what is deliberately different language employed in section 48, sub-section (2), which, as we have already pointed out, is the language which was employed in the saving section of the Ordinance itself, which had, in the first instance, repealed the Sales Tax Act of 1946. We are, therefore, of opinion that the expression "legal proceeding" in section 48(2)(ii) includes assessment proceedings, and that in the case before us such proceedings were pending on 1st November, 1952, because notices initiating the proceedings had been served on the applicants on 28th October, 1952. The other argument that survives for determination is whether these proceedings terminated with the decision of the Tribunal or whether the proceedings continued when a reference to the High Court was applied for. We have no doubt whatever in our mind that the proceedings did not terminate with the decision of the Tribunal, but the proceedings continued even at the stage when an application was made for a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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