SHAKTI BHANDAR Vs. COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) THE Tribunal constituted under the M. P. General Sales Tax Act, 1958, (hereinafter referred to as "the Act") has referred the following question to this Court for its opinion :

(2.) THE facts in a nut-shell necessary for answering the aforesaid question are that the order of assessment passed by the Additional Sales Tax Officer, against the assessee was served on the assessee-applicant on 1st February, 1979. The period of limitation for preferring an appeal against the said order as contained in Section 38 (4) of the Act is 30 days from the date of communication of the order against which the appeal is to be filed. The period of 30 days calculated from 1st February, 1979 was to expire on 3rd March, 1979. The assessee sent the memorandum of appeal to the Deputy Commissioner of Sales Tax, Sagar by registered post on 1st March, 1979. The registered letter containing the memorandum of appeal was received in the office of the Deputy Commissioner of Sales Tax on 6th March, 1979. On being informed by the Deputy Commissioner of Sales Tax that the appeal filed by the assessee was beyond time, the assessee made an application on 18th August, 1980 for condonation of the delay. The appeal, however, was dismissed by the Deputy Commissioner of Sales Tax as barred by time vide order dated 30th August, 1980. He took the view that in sending the memorandum of appeal on 1st March, 1979, the assessee does not appear to have taken into consideration the normal time which a registered letter takes in reaching its destination and having sent the memorandum of appeal by registered post as late as on 1st March, 1979, the assessee could not expect the appeal to reach the appellate authority within limitation. Aggrieved by the aforesaid order of the Deputy Commissioner, Sales Tax, the assessee preferred an appeal before the Board of Revenue which constitute the Tribunal under the Act.

(3.) FROM a perusal of paragraph 2 of the order of the Tribunal it appears that the point which was urged on behalf of the assessee before the Tribunal was that since the assessee had sent the first appeal by a registered post on 1st March, 1979, it should be treated within time, even though it actually reached the appellate authority on 6th March, 1979. The Tribunal, however, repelled this contention relying on a decision of this Court in Harlal Vaishya v. State of M. P. 1982 JLJ 73. In that case on a difference of opinion between two learned Judges on the question as to whether the date on which the memorandum of revision under Section 39 of the Act read with Rule 57 (4) framed thereunder was posted under a registered cover is relevant for purposes of computing the period of limitation or the date on which it was actually received in the office of the Revising Officer, the matter was referred to a third learned Judge and the decision on the basis of the view taken by the third Judge was that if a revision application sent by registered post reached the revising authority after the prescribed period, it would be barred by limitation and the date of posting is immaterial.