COLLECTOR OF SALES TAX Vs. KANTHADBHAI AND POPATLAL

JUDGEMENT

(1.) IN this case the Collector of Sales Tax, Bombay, has applied for reference to the High Court of certain questions said to arise out of our decision in Appeal No. 46 of 1957 dated the 17th January, 1958. Mr. R. V. Patel has taken a preliminary objection that this application is time-barred. Our order is dated the 17th January, 1958, and the present application was filed on 13th May, 1958. The said order, however, was communicated to the applicant on 13th February, 1958. If that date be taken as the starting point of the limitation, the application will not be time-barred. We think that it would be proper to take 13th February, 1958, as the starting point of limitation. Mr. Patel has cited the decisions of the Patna High Court in Doma Sao Kishun Lal v. The State of Bihar ([1952] 3 S.T.C. 167) and The State of Bihar v. Telu Ram Jain ([1953] 4 S.T.C. 252), and the decisions of the Allahabad High Court in Gopaldas Sarvadayal v. Commissioner of Sales Tax ([1956] 7 S.T.C. 360) and Haji Ghulam Hussain and Sons v. Commissioner of INcome Tax, U.P. ([1957] 31 I.T.R. 231), in support of his contention, but the High Court of Bombay in Abdul Aziz Ansari v. The State of Bombay ([1958] 9 S.T.C. 135) referred to rule 42 of the Bombay Sales Tax (Procedure) Rules, 1954, which casts an obligation on this Tribunal to supply a copy of its order to the applicant or to a person affected thereby and to the officer whose order forms the subject-matter of the proceedings, and observed as follows : "Since the decision is not given in the presence of the parties, there being a requirement that the order shall be communicated to the parties, time for presenting an application for reference to the High Court does not begin to run until the copy is supplied to the party aggrieved". IN this case we no doubt informed the parties at the time of the hearing the gist of the order that we proposed to make, but the order, with the reasons supporting it, was communicated only after a fair copy of the order had been type-written and signed by the members of the Tribunal. Simply from the announcement made to the parties at the time of the hearing of the kind of order that was going to be made, it was not possible for either of them to prepare an application requiring reference to the High Court. We think, therefore, that the present application is in time.

(2.) THE facts in this case are as follows : THE opponents submitted two questions to the Collector of Sales Tax under section 27 of the Act of 1953 for his determination. Those questions were : (1) whether the opponents were dealers within the meaning of the Act, and (2) whether the transactions mentioned in their application were sales.

(3.) THE Additional Collector of Sales Tax held that in cases where the gold was brought by the customers and the ornaments made out of it there were no sales, but that in those cases in which this practice had been "abandoned", that is, where the opponents had used gold out of their own stock for a customer, there had been a sale of the finished article and that to the extent of such transactions the opponents should be treated as dealers.