TMI Blog1959 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... o dispose of a preliminary objection raised on behalf of the State of Bihar that the petitioner's application is barred by limitation. It would appear that the order of the learned Deputy Commissioner was passed on 9th January, 1959. The period of limitation is 60 days. The revision petition before the Board was filed on 7th April, 1959. It is the petitioner's case that the learned Deputy Commissioner after hearing the arguments on 15th December, 1958, reserved his order. He subsequently on 9th January, 1959, passed his order admitting the application of the State of Bihar, and directed that the case be put up for hearing, without notice to any party. The petitioner submits that he became aware of this order only on 30th January, 1959. He then applied for a certified copy of the order on 17th February, 1959, and he received the certified copy of the order on 13th March, 1959. On the certified copy of the order it is, however, noted as having been ready on 4th March, 1959. The time taken for obtaining the copy would therefore be the period from 17th February, 1959, till 4th March, 1959, and not up till 13th March, 1959. The period of 60 days from 30th January, 1959, when the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor were also dismissed by the Collector of Sales Tax on the 25th September, 1957. A copy of that order of dismissal was forwarded to the petitioner by post on the 26th September, 1957. There is some controversy between the parties now about the exact date on which that order was received by the petitioner. According to the affidavit filed by the petitioner, it was received by him only on the 4th October, 1957. This has been challenged by Sri G. K. Misra on the other side though there is no affidavit in support of the challenge. March, 1959, but if the period taken for obtaining the copy, as admissible, is counted, then his petition would be in time. It is, however, submitted on behalf of the opposite party, the State of Bihar, that on the authority of the Patna High Court decision reported in Doma Sao Kishun Lal v. State of Bihar(1), in computing the period of limitation in this case, the time requisite for obtaining the copy of the order cannot be excluded, and as such, the application before the Board is time-barred. The ruling cited on behalf of the State of Bihar is with reference to the period of limitation under section 21 of the Bihar Sales Tax Act, 1944, the language of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance. In terms of sub-section (4) of section 24, the prescribed authority, i.e., the revisional authority, may, upon application, or of its own motion, revise any order passed under the Act. The (1) [1952] 3 S.T.C. 167; A.I.R. 1952 Pat. 357. 4.. On the 5th September, 1957, the Orissa Legislature passed an Act entitled the Orissa Sales Tax (Amendment) Act, 1957 (Orissa Act XX of 1957). The various sections of that Act were brought into force on different dates but the sections material for our purpose, namely sections 9, 10, and 11, were brought into force only on the 2nd December, 1957. By the Amending Act an independent authority known as the Sales Tax Tribunal was constituted for Orissa and a right of appeal to that authority was given to a party aggrieved by an appellate order of the Sales Tax Officer. The right of revision conferred on the Commissioner of Sales Tax was restricted to revisions against the orders of the subordinate Sales Tax Authorities and not against the order of the Sales Tax Tribunal. Section 24 was also amended by Orissa Act XX of 1957 and the Tribunal was conferred the power to state a case for the decision of the High Court on any question of law aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in S.C. Sarkar's third edition The Law of Civil Procedure in India and Pakistan at page 215. Provided the revisional power is there, it does not matter how it is sought to be invoked. That being the case, it is unnecessary to go into the question of the propriety of the Superintendent, Commercial Taxes, moving the application before the Deputy Commissioner, on behalf of the State of Bihar. It would, however, appear that he was expressly ordered to do so by the Commissioner. It is next argued that the only form of revision that has been prescribed under the Act, namely Form XI, would show that such revision applications are only contemplated to be filed by the dealers, and not by the State. The short answer to this argument is that the forms prescribed under the rules cannot abridge in any manner the scope of the revisional power contained in the substantive provisions of the Act. It may be that this was an omission; or it may be that it was not considered necessary to prescribe a separate form where the State may be a party. That cannot detract from the right of the State to file a revision, if the law permits it. This arguments must be dismissed as being without substance. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court may interfere under that Article. This principle has been emphasised in a recent decision of the Supreme Court reported in U.P. State v. Mohd. Noor (1). But at the same time a party should not be permitted to escape the rigorous effects of the law of limitation by applying to this Court under Article 226, after the expiry of the period prescribed by law to get relief from the appropriate revisional or appellate authorities. If, as a fact, the petitioner received the copy of the Collector's order prior to the 1st October, 1957, as alleged by the sales tax department, he should have filed a revision (1) A.I.R. 1958 S.C. 86. petition before the Board of Revenue within sixty days from that date and thus kept the revision petition alive so as to make it pending on the date of coming into force of sections 9, 10 and 11 of Orissa Act XX of 1957. Such a revision would then have been disposed of by the Board of Revenue and the petitioner would undoubtedly have had a right to ask for a statement of case to this Court, as provided in section 24 of the Act. If, on the other hand, the petitioner's statement to the effect that he received a copy of the Collector's order only on the 4t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot ask this Court to save him from the effects of the law of limitation. Moreover it is still open to him to file a regular appeal before the Sales Tax Tribunal under the provisions of the aforesaid Act and ask that authority to condone the delay arising out of the fact that he was prosecuting this writ application before this Court. We do not wish to fetter, in any way, the discretion of the Tribunal to examine whether in such circumstances the provisions of section 14 of the Limitation Act would come to the help of the petitioner. Nor should it be understood that we accept as correct the petitioner's statement that he received the copy of the order of the Collector of Sales Tax only on the 4th October, 1957. It is primarily the look-out of the petitioner to satisfy the Sales Tax Tribunal about the correctness of the facts, on which his right to appeal to the Tribunal will depend. Whatever may be the ultimate order passed by the Tribunal the petitioner has always a further remedy by way of asking that authority to refer to the High Court any question of law that may arise out of its order, under subsection (1) of section 24 of the Act. Under these circumstances we are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
