RAM NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) A statement of the case has been submitted by the Commercial Taxes Tribunal, Bihar, Patna (hereinafter referred to as " the Tribunal"), under Section 33(1) of the Bihar Sales Tax Act, 1959 (hereinafter referred to as " the Act "), referring the following question of law for the opinion of this court:

(2.) THE relevant facts of the case may be culled out from the statement of the case as well as from the order dated December 21, 1971, of the Tribunal in Revision Case No. 95 of 1969. THE revision application was filed against the order of the Deputy Commissioner of Commercial Taxes (Appeals), Bhagalpur Division, Bhagalpur, dated April 7, 1969, passed in Sales Tax Appeal MGST No. 2 of 1967-68. THE revision application was filed before the Tribunal on June 28, 1969. Under Section 31(4) of the Act, the revision application could be filed within sixty days from April 7, 1969, i.e., till June 6, 1969. THE Tribunal, therefore, found that the revision application was, prima facie, barred by limitation. THE Tribunal also held that no deduction could be admissible for the time taken in the grant of certified copy, as it was applied for on June 12, 1969, after the period of limitation had expired. THE Tribunal also found from the record of the Deputy Commissioner that the appeal was heard by him on March 20, 1969, when he fixed April 7, 1969, for passing the order on the appeal. THE order sheet showed that the order dated March 20, 1969, fixing the date April 7, 1969, was passed immediately at the close of the hearing as vShri N. Sahai (wrongly mentioned in the order of the Deputy Commissioner as Shri R. N. Rai), advocate for the State, signed the order sheet, but no signature of the applicant's advocate was taken. A report was called for from the Deputy Commissioner and in his report dated August 21, 1969, to the Tribunal, it was stated that the order of March 20, 1969, was made known to the applicant, as may be seen from the signature of the applicant's advocate on the order sheet, but when it was pointed out to the Deputy Commissioner again that the order sheet did not bear the signature of the applicant's advocate, the Deputy Commissioner sent a second report dated April 10, 1970, in which he stated that the signature of the applicant's lawyer was omitted to be taken but the date fixed for orders was also notified through causelist. THE applicant filed an affidavit on February 28, 1970, that the date fixed for orders was not made known to him or to his lawyer nor did he receive the informatory copy of the order at all and that he came to know of the order only on June 12, 1969.

(3.) THE learned advocate for the petitioner has also relied on the case of Laheriasarai Central Co-operative Bank Ltd. v. CIT [1968] 69 ITR 441 (Pat). In this case, along with memorandum of appeal to the Tribunal, the assessee did not send the chalan showing deposit of Rs. 300 in the treasury, being the filing fee, but sent an application that the assessee was exempted from payment of any fee in accordance with a notification issued by the Bihar Government of which communication was sent to the assessee by the Assistant Registrar of Co-operative Societies. After the expiry of the period of limitation, the office of the Tribunal intimated the assessee that the said notification was not applicable to the assessee and, hence, the appeal, was incompetent in the absence of the deposit of Rs. 100. Three days after receipt of the communication, the assessee deposited the sum of Rs. 100 in the treasury and transmitted the chalan to the Tribunal office. THE assessee also filed an application for condonation of the delay stating that the assessee was prevented by a bona fide impression arising from the communication received by the assessee from the Assistant Registrar of Co-operative Societies from making the deposit of Rs. 100 at the time when the assessee presented the appeal to the Tribunal. THE Tribunal, however, dismissed the appeal in limine, holding that the appeal was barred by time as in its view the reasons given by the asessee were not sufficient for condoning the delay. In those circumstances, the Patna High Court held that the Tribunal was not justified in refusing to condone the delay in depositing the prescribed fee in this case. THE facts of the case were different and the decision in this case will not be applicable to the case of the petitioner where the delay was due to the petitioner himself.