TMI Blog1950 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... urt acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act. The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate. In this view, the appeal must be dismissed, though, on hearing the parties, it appeared to us that the sales tax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appellant under Section 10(5) of the Act which had no application to his case, inasmuch as he had been registered as required by Section 7 of the Act. - Civil Appeal No. 61 of 1950 - - - Dated:- 30-11-1950 - Judge(s) : MUKHERJEE., FAZL ALI., CHANDRASEKHARA AIYAR JUDGMEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 1945, and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under Section 10(5) of the Act. Section 10(5), under which the notice purported to have been issued, runs thus :---- " If upon information which has come into his possession, the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registration, the Commissioner shall, after giving the dealer a reasonable opportunity of being heard, assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ire the Board of Revenue to state a case and refer it to the High Court. The section also provides that "the High Court upon the hearing of any such case shall decide the question of law raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to the Board of Revenue a copy of such judgment under the seal of the Court.......... and the Board shall dispose of the case accordingly." In accordance with this section, the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer it to the High Court. Dealing with this application, the High Court pointed out that the Member of the Board had not been asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Full Court to be so justified. Before the Board the question was not fully argued, and their Lordships accordingly refrain from expressing any opinion whatever upon it. " The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong. At the commencement of the hearing of the appeal in this Court, a preliminary objection was raised by the learned counsel for the respondent that this appeal was not competent, and, on hearing both the parties, we are of the opinion that the objection is well founded. In Sri Mahanth Harihar Gir v. Commissioner of Income-tax, Bihar and Orissa, it was held by a Special Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 10th clause of these presents: provided that in either case, that the sum or matter at issue is of the amount or value of not less than ten thousand rupees, or that such judgment, decree or order involves, directly or indirectly, some claim, demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees; or from any other final judgment decree or order made either on appeal or otherwise as aforesaid when the said High Court declares that the case is a fit one for appeal to Us .............." In order to attract the provisions of this clause, it is necessary to show, firstly, that the order under appeal is a final order; and secondly that it was passed in the exercise of the original or ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was looked at it appeared that the jurisdiction of the Court appealed to was only consultative, and that there was nothing which amounted to a judgment or order. " It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction. It is not contended that the matter arose in the exercise of the Appellate jurisdiction of the High Court, because there was no appeal before it. Nor can the matter, properly speaking, be said to have arisen in the exercise of the original jurisdiction of the High Court, as was held by the Judges of the Lahore High Court in the case to which reference was made, because the proceeding did not commence in the High Court as all original sui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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