VASANJI GHELA AND CO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this petition under Articles 226 and 227 of the Constitution the petitioners have challenged the correctness and legality of the decision of the Maharashtra Sales Tax Tribunal dated 24th September, 1965, whereby the Tribunal rejected the petitioners' application requiring the Tribunal to refer to the High Court questions of law mentioned in the application for reference.

(2.) The short facts leading to the application for reference and the above decision may be summarised as follows : Petitioner No. 2 was at all material times a partner in petitioner No. 1 firm being a registered dealer under the Sales Tax Act. In connection with the sales tax liability of petitioner No. 1 firm hereinafter referred to as the petitioner-firm for the period from 1st April, 1950, to 31st October, 1952, returns were filed by the petitioner-firm. The return in respect of the quarter ending 31st October, 1952, was filed on 2nd December, 1952. The Sales Tax Officer disposed of the question of the petitioners' liability in respect of the above period (1st April, 1950, to 31st October, 1952) by an assessment order dated 20th August, 1953. He held that out of the actual sales ascertained by him, sales worth Rs. 18,27,053-3-6 should be "disallowed" (thereby meaning as sales to a registered dealer) "as these sales did not appear to be genuine transactions". The petitioners filed an appeal against the above assessment order. Their main contention in the appeal was that in respect of the sales held to be not genuine particulars had not been disclosed to them. By a schedule appended to a letter dated 12th March, 1956, the appellate authority gave particulars of the sales which were liable to be disallowed as not genuine. Thereafter, in due course the appeal was disposed of by an order dated 12th April, 1956. The petitioners' case is that by the appellate order relief was given to the petitioners in respect of sales of the value of Rs. 6,25,247-11-3 to Keshavji Hirji. The submission was that the appellate authority held the sales of the petitioners to Keshavji Hirji to be genuine sales to a registered dealer and gave relief accordingly. The petitioners filed a revision application against the above appellate order on 25th May, 1956. The revisional authority issued a notice dated 16th May, 1958, under the suo motu powers of revision vested in it in connection with the alleged sales of the petitioners to Keshavji Hirji. The revisional authority appears to have formed an opinion that these sales were not genuine sales to a registered dealer and an inquiry in revision should be made in that connection. The revisional application filed by the petitioner and the matter of the above suo motu notice issued by the revisional authority, were decided by the Deputy Commissioner of Sales Tax by his order dated 22nd July, 1961. His finding was that the petitioners' alleged sales to Keshavji Hirji were not genuine and the Sales Tax Officer was right in "disallowing" these sales. From the above decision of the Deputy Commissioner the petitioners filed revisional application before the Maharashtra Sales Tax Tribunal. That revisional application was disposed of by a decision of the Tribunal dated 29th November, 1963. The judgment and decision was served on the petitioners on 31st December, 1963. Under section 23 of the Bombay Sales Tax Act, 1946, and under section 34 of the Bombay Sales Tax Act, 1953, a provision is made to enable assessees to have questions of law arising out of the orders made by the Maharashtra Sales Tax Tribunal referred to this Court. By an application dated 20th March, 1964, the petitioners submitted to the Tribunal that a question of law mentioned in their application arose out of the order of the Tribunal and the same should be referred by the Tribunal to this Court. Under sections 23 and 34 mentioned above the time prescribed for application to the Tribunal for making a reference to this Court was respectively 60 days and 90 days from the date of the decision of the Tribunal. By application dated 2nd August, 1965, the petitioners submitted that they were under the impression that the time for filing application for reference was 90 days from the date of receipt of the judgment, and that in connection with their application they were governed by 1953 or 1959 Sales Tax Act. That was the effect of the decision of the Tribunal itself in the case of Collector of Sales Tax v. Mohammed Usman Chand (Revision Application No. 421 of 1960 (Sales Tax Tribunal, Bombay). They further submitted that they were lay people. If the 1946 Act was held to be applicable, the delay in filing the petition was 21 days. The petitioners submitted that the delay in filing the application should be condoned.

(3.) By the impugned decision dated 24th September, 1965, in connection with the application for condonation of delay the Tribunal observed : "there is no power for the Tribunal to condone the delay ......" The Tribunal further held that to the proceedings out of which the application for reference arose the 1946 Act applied. The prescribed period of limitation in respect of the application was 60 days. The application being barred by limitation was liable to be rejected. The application was accordingly rejected.