SHORILAL RADHAKISHAN Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS is a revisional application against an order made by the Additional Collector of Sales Tax, Bombay City Division (Revision), Bombay, on 28th April, 1959 and the short question which arises is whether the Assistant Collector of Sales Tax was right in summarily rejecting the appeal preferred by the applicants before him.

(2.) THE matter arises this way. An appeal was filed before the Assistant Collector of Sales Tax against an assessment order passed by the Sales Tax Officer, Licence Circle, Bombay. The order related to a period between 1st April, 1955 and 31st March, 1956. The appeal was admitted and this is not in dispute. It was fixed for hearing on 31st July, 1958. On that date the applicants attended, but it appears that the papers of the case were not available so that the applicants did all that they could do in the circumstances by attending on the date of hearing before the appellate authority. The case then stood adjourned to 10th September, 1958. On this date the applicants also attended, but they applied for an adjournment on the ground that their sales tax practitioner was not available. The adjournment was granted and the case stood adjourned to 13th October, 1958. On this date the applicants did not attend but a manager of the firm sent a letter asking for another adjournment on the ground that "the concerned man regarding the above is out of station. He is in Amritsar for attending marriage ceremony of his relative". The learned appellate authority was not inclined to adjourn the case and observed that he had given sufficient opportunity to the applicants to prove their contentions and as the applicants had not attended his office he was not inclined to adjourn the case any further and in the end, he summarily rejected the appeal on the ground that the applicants had not attended his office to prove their contentions. This order was upheld by the Additional Collector and it is the correctness of this last order which has been assailed by the applicants.

(3.) MR . Joshi appearing for the applicants has raised a number of contentions but, in substance, his contention is that the Assistant Collector of Sales Tax was wrong in summarily rejecting the appeal and that the appellate authority should have given a further adjournment on 13th October, 1958. At the outset, it may be observed that the order which has been passed by the Assistant Collector is not expressed in appropriate language. After an appeal is admitted an appellate authority cannot summarily reject an appeal. The stage of summary rejection is prior to the final hearing of the appeal and the procedure is indicated in Rule 39 of the Bombay Sales Tax (Procedure) Rules, 1954, about the summary rejection. Evidently, the expression used by him is wrong, but the point still remains whether the Assistant Collector of Sales Tax was within his rights in dismissing the appeal and this raises the application of Rule 40 of the Bombay Sales Tax (Procedure) Rules, 1954. Rule 40(1) provides for fixing a date for hearing the appellant or applicant or his agent or a legal practitioner. Rule 40(2) provides for adjourning the hearing of an appeal or application to another date and Rule 40(3) provides that if on the date fixed for hearing or any other date to which the hearing may be adjourned the appellant or applicant does not appear before the said authority either in person or through an agent or a legal practitioner the said authority may dismiss the appeal or application for revision or decide it ex parte as it thinks fit. Therefore, under Rule 40(3) the appellate or authority has one of two courses open to him, either he may dispose of the appeal on the ground that the appellant had not appeared before him or that he may decide the appeal ex parte if he so thought fit, In this case it was for the appellate authority to exercise the discretion. It was open to him to dismiss the appeal or it was also open to decide it ex park. It would appear from the order made by the Assistant Collector that he had chosen the first alternative. The view which has prevailed with the appellate authority appears to be that the applicants did not attend his office to prove their contentions. An opportunity was given on 10th September, 1958, when the applicants' Advocate was not present. An opportunity was, therefore, given to the applicants of which they did not take advantage. A second opportunity was given to the applicants on 13th October, 1958, when the applicants could have attended and appeared before the Assistant Collector but the reason for not attending is indicated in the letter referred to above which stated that the concerned man was out of the station. Now, the case stood in appeal and not before the original authority. It was hardly likely that the concerned man was to be of much use at the hearing of the appeal and the Assistant Collector thought that even when two opportunities were given to the applicants to prove their contentions they were not present and concluded that the applicants were not willing to take advantage of the opportunities afforded. The letter written by the manager does not even mention the name of the person concerned nor the date since when he was out of the station. This is not to suggest that the concerned man had no good reason to be in Amritsar because the letter shows that he went there to attend a marriage, but the point remains that on this adjourned date, viz., 13th October, 1958, it would have been possible for the applicants to assist the Assistant Collector in the disposal of the case. This the applicants failed to do and if the Assistant Collector considered that the applicants were not taking advantage of the opportunities given to them to prove their contentions, it would be wrong to suggest that he was not right in doing so. Under these circumstances we see no reason to interfere with the order made by the appellate authority or by the Additional Collector in revision.