STATE OF BIHAR Vs. CHRESTIEN MICA INDUSTRIES LTD

JUDGEMENT

(1.) THE assessee is a dealer in mica, having its place of business at Domchanch in the district of Hazaribagh. For the four quarters of the year 1948-49 the assessee submitted returns and its books of accounts were examined by the Sales Tax Officer, Hazaribagh. The returns of the assessee were not accepted as correct and the Sales Tax Officer made an assessment to the best of his judgment under section 13(4) of the Bihar Sales Tax Act. The assessee preferred appeals before the Commissioner of Sales Tax, but these appeals were dismissed. The assessee then took the matter in revision to the Board of Revenue. The ground taken by the assessee was that the process of mining mica cannot be said to be a process of production or manufacture within the meaning of section 2(g) of Act VI of 1949. This contention was accepted by the Board of Revenue and the assessment of sales tax made upon the assessee for all the four quarters was set aside. In the course of its order the Board of Revenue said :-

(2.) THEREAFTER the Commissioner of Sales Tax filed an application under section 25(1) of the Act on behalf of the State of Bihar for making a reference to the High Court on the question of law involved. Accordingly, the Board of Revenue has stated a case on the following question of law for the opinion of the High Court :-

(3.) ON behalf of the assessee Mr. Dutt raised a preliminary objection that the reference made by the Board of Revenue under section 25(1) was not competent since the application was made not by the Commissioner but by the State of Bihar. It was argued that the jurisdiction of the Board of Revenue to state a case under section 25(1) was dependent upon a proper application made by the Commissioner of Sales Tax. It was contended that the preliminary conditions mentioned in section 25(1) was the essential foundation of the jurisdiction of the Board of Revenue to make a reference; and unless those preliminary conditions were complied with, the reference made by the Board of Revenue was not legally competent. In support of this argument Mr. Dutt referred to a decision of a Bench of this Court, State of Bihar v. Messrs. Arthur Butler and Co. Ltd. (Miscellaneous Judicial Case No. 574 of 1953, decided on the 24th April, 1956). (Since reported at p. 379 supra) I am, however, unable to accept the argument of Mr. Dutt as valid. In the present case the application to the Board of Revenue for making a reference under section 25(1) was signed by the Commissioner of Sales Tax himself. It is true that the State of Bihar is mentioned as the petitioner at the top of the petition. But the learned Government Advocate pointed out that the Commissioner of Sales Tax is an authorised agent ex-officio for the State of Bihar. The learned Government Advocate has also referred to the provisions of Order 3, rule 1, and Order 27, rule 2, Code of Civil Procedure, by way of analogy. It is manifest that the provisions of section 25(1) have been strictly complied with because the Commissioner of Sales Tax has actually signed the application and the name "State of Bihar" at the top of the petition is a superfluity and may be ignored. The principle of the decision in Miscellaneous Judicial Case No. 574 of 1953 has no application to this case. The material facts of that case were different. In that case a petition under section 25(1) was signed by the Commissioner of Sales Tax, but it was rejected by the Board of Revenue. Thereafter the State of Bihar made an application under section 25(2) to the High Court against the refusal of the Board of Revenue to state a case. The application to the High Court under section 25(2) was not signed by the Commissioner of Sales Tax; it was signed, on the other hand, by one Ramanugrah Narain, Head Assistant of the Bihar Secretariat, and the application was filed on behalf of the State of Bihar. In the present case the material facts are different and I hold that there has been no breach of the provisions of section 25(1) and the reference made by the Board of Revenue is legally competent.