TMI Blog1991 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... y the applicant after the Gujarat High Court had reversed the said decision of the Tribunal?" The facts giving rise to this reference may be shortly stated. The applicant is engaged in the business of manufacturing and selling artificial silk yarn and reselling chemicals. It is a dealer registered under the Act. During the year from January 1, 1971 to December 31, 1971, the applicant had purchased certain raw materials or consumable stores locally from registered dealers on payment of tax, and had used them in the manufacture of artificial silk yarn sold during that year. The applicant had sold the manufactured artificial silk yarn locally or in the course of inter-State trade or commerce and had also consigned some of the manufactured goods for sale outside the State of Gujarat. The applicant claimed set-off in respect of the tax paid on the purchases of raw materials or consumable stores in terms of rule 42 of the Gujarat Sales Tax Rules, 1970. The Sales Tax Officer found that the amount of 3 per cent of the sale price of the consigned goods manufactured exceeded the amount of tax which the applicant had claimed by way of set-off on the amount of tax paid on the purchases of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, has referred the abovestated question for decision of this Court. What is urged by the learned Advocate appearing for the applicant is that the Tribunal committed an error in holding that non-filing of appeal within time by the applicant in view of the decision of the Tribunal in Prabhat Solvent Extraction Industries' case could not and did not constitute sufficient cause for condonation of delay. He submitted that if an assessee bona fide believes that in view of the decision of the Tribunal on the same point, though in a different case, it would be futile to file an appeal to the Tribunal and, therefore, does not file an appeal but files the same subsequently on coming to know about the change in the position of law, as a result of the decision of the High Court or the Supreme Court, then his prayer for condonation of delay for that reason should be regarded as a competent plea. He submitted that as the decision of the Tribunal is binding on all the subordinate authorities, the applicant, as a reasonable person, thought it fit to accept the said decision and not to take further action. Under the circumstances, it can reasonably be said that because of the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment made under the Act. It was in these facts and circumstances that the Supreme Court, after considering which remedies were open to the assessee in such a case, observed that the assessee could have either appealed or applied for revision and prayed for condonation of delay on the ground that the mistake which was responsible for recovery of the tax was discovered late, because such a plea would have been perfectly competent under section 22B. This observation cannot be read out of context and from the said observation we cannot jump to the conclusion that in all cases where it is found that either the tax was paid illegally, or that no appeal or revision was filed against the assessment order and, if an appeal or revision is filed after the expiry of the period of limitation, and an application for condonation of delay is made, then the ground that the mistake which was responsible for the payment of tax for not filing an appeal or revision within the prescribed period of limitation was discovered late, must be regarded as a competent plea. The learned advocate also relied upon the decision of this Court in Karamchand Premchand Put. Ltd. v. Commissioner of Income-tax [1975 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and had not taken any action in view of the position of law which was settled since 1921 as a result of the decision of the Bombay and other High Courts. As the Supreme Court reversed that view, it was held that that decision gave the assessee a cause for approaching the higher authority against the relevant assessment order. This view was taken because the deduction was not claimed and no action was taken because of the mutual mistake of law. Both the assessee and the department had proceeded on the basis that such a deduction was not allowable. As we have pointed out above, the question which is involved in this case is quite different. The decision which was regarded as sufficient cause for not filing the appeal to the Tribunal earlier was the decision of the Tribunal and not of the High Court and that too a recent one. It also cannot be stated that the Tribunal had settled the law on the point though it had decided the point of law inasmuch as it had interpreted the proviso to rule 42 in a different manner. One more decision was relied upon by the learned advocate for the applicant and that is of the Andhra Pradesh High Court in State of Andhra Pradesh v. Venkataraman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1956, in State of Gujarat v. Suhrid Giegy Ltd. (Sales Tax Reference No. 2 of 1974 decided on June 28, 1974), observed that it is obvious that while exercising the advisory jurisdiction under section 61, the High Court finally settles any doubtful question of law by setting all doubts at rest in the matters of sales tax. Therefore, the law which is thus settled even in the advisory jurisdiction would be the final pronouncement of law, subject to the decision of the Supreme Court in sales tax matters so far as the State is concerned. This view was taken by this Court considering the position, power and jurisdiction of the High Court and the scheme of the Bombay Sales Tax Act. The scheme of the Gujarat Sales Tax Act is not different from that of the Bombay Sales Tax Act as regards the question with which we are concerned and, therefore, the observation made in the said judgment would clearly apply to the cases arising under the Gujarat Sales Tax Act. In our opinion, the Tribunal has rightly pointed out that when a Tribunal decides any question and interprets a provision of law, while doing so, it cannot be said to be laying down any law for the State or settling the law for the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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