VAISHALI FLOUR MILLS Vs. STATE OF BIHAR

JUDGEMENT

(1.) The matter has come up before me for consideration of the stamp report, that the instant case is barred by limitation having been filed beyond forty-five days of the passing of the order refusing to make a reference to the High Court.

(2.) Mr. Pawan Kumar Rajgarhia, learned counsel, assailed the report and submitted that the instant application having been filed within forty-five days of the communication of the order refusing to refer the matter to the High Court, it is with in time. According to the learned counsel, under regulation 32 of the Bihar Commercial Taxes Regulation, 1979, it is incumbent upon the Tribunal to communicate its order after the judgment is signed.

(3.) The moot question, therefore, is whether under the Bihar Finance Act, 1981, the limitation runs from the date of making of the order or from the date of communication of the order to the applicant. This point came to be considered by this Court in the case of Doma Sao Kishan Lal v. State of Bihar AIR 1952 Pat 357, where their Lordships were considering a similar provision contained in Section 21 of the Bihar Sales Tax Act, 1944. Section 21 of the Bihar Sales Tax Act, 1944 required the assessee to make an application within sixty days from the date of passing of any order by the Board of Revenue, for the purpose of making a reference to the High Court by the Board. The application, however, was not made within the time provided for the making of the order but within time after excluding the period taken for obtaining certified copy as envisaged under the Indian Limitation Act. The court held it barred by time, there being no provision in the Sales Tax Act for excluding the time requisite for obtaining copies unlike Section 67A of the Income-tax Act which provides that in computing period of limitation the time requisite for obtaining copy of the order shall be excluded. Section 66(7A) of the Income-tax Act also states applicability of Section 5 of the Indian Limitation Act. There being no corresponding provision in the Sales Tax Act of 1944, their Lordships rejected the prayer for condonation following the principle "in a taxing Act one has only to look at what is clearly said and there is no rule for any intendment. It is not open to the court to entertain any argument that hardship will be caused since there is no provision in the Act for excluding the time requisite for obtaining copies from the period prescribed. It is not possible to extend the period prescribed in Section 21 for any equitable reason". After having so held the reference made by the Board of Revenue, on an application made by the assessee beyond sixty days was held to be incompetent.