COMMISSIONER OF COMMERCIAL TAXES Vs. GURU CHARAN SAO

JUDGEMENT

(1.) These two tax cases have been heard together and they are being disposed of by this common judgment.

(2.) At the instance of the Commissioner of Commercial Taxes, Bihar, this court directed the Commercial Taxes Tribunal, Bihar, to state the cases and to refer them to the High Court under Section 33(3) of the Bihar Sales Tax Act, 1959 (hereinafter to be called the "Act") for decision of the following common question: When the Commissioner of Commercial Taxes had rejected an application filed before him under Section 31(5) of the Bihar Sales Tax Act, 1959, by the assessee, in limine, did the Commercial Taxes Tribunal, Bihar, Patna, have jurisdiction to entertain a revision on behalf of the assessee from that order, under Section 31(2) and set aside the order of the Commissioner of Commercial Taxes and remand the case to him for re-examining the points which had been raised by the assessee in the application under Section 31(5)?

(3.) The facts of Tax Case No. 62 of 1970 are these: Guru Charan Sao, who is a grocery dealer at Bakhtiarpur, was assessed under Section 16(5) of the Act as an unregistered dealer on a gross turnover of Rs. 2,40,000 for the period 1st February, 1961, to 30th September, 1967, and a tax of Rs. 12,300 and penalty of Rs. 500 were imposed on him by an order of assessment dated 5th October, 1967. After a lapse of nearly seven months the demand notice was issued on 23rd May, 1968, and served on him the next day. The assessee did not file an appeal under Section 30 of the Act before the prescribed appellate authority against the order of assessment. On 26th June, 1968, he filed an application before the Commissioner invoking his jurisdiction under Section 31(5) of the Act to set aside the order of assessment. The Commissioner by his order dated 26th November, 1968, dismissed that application. The dealer thereupon filed an application under Section 31(2) of the Act before the Tribunal for revising the order of the Commissioner. The Tribunal by its order dated 1st November, 1969, allowed the application, set aside the order of the Commissioner and remanded the case to the Commissioner for re-examination in accordance with law and the directions given by it. The Tribunal made an observation to the effect that there was a need for the Commissioner of Commercial Taxes to make further enquiries about the financial condition of the dealer and exercise his discretionary power of revision under Section 31(5) of the Act if justified by the circumstances of the case. The Commissioner of Commercial Taxes thereupon filed an application before the Tribunal for reference under Section 33(1) of the Act. The Tribunal by its order dated 28th September, 1970, rejected the application for reference. The Commissioner thereupon filed an application in this court under Section 33(3) of the Act and the Bench of this Court by the order dated 20th July, 1971, directed the Tribunal to state a case on the question of law, referred to above, and to refer it to this court.