BALDEO LAL ROY Vs. STATE OF BIHAR

JUDGEMENT

(1.) The assessee in this case is a P.W.D. Contractor residing at Dinapore. The years of assessment are 1948-49, 1949-50 and 1950-51 and the period of assessment is from the 1st of April, 1948, to the 31st of March, 1951.

(2.) It appears that for the purpose of jurisdiction under the Bihar Sales Tax Act, Dinapore, was included in the year 1944 in the Patna Urban Circle and the assessee was registered as a dealer in that circle. In 1949, however, Dinapore was transferred to the Patna Rural Circle and the assessee obtained a fresh certificate of registration under that circle. The assessee was taxed in the Patna Rural Circle on the 10th of April, 1951, for the year 1948-49 on a taxable turnover of Rs. 1,15,326 and on the 29th of March, 1952, for the year 1949-50 on a taxable turnover of Rs. 38,370 and for the year 1950-51 on a taxable turnover of Rs. 1,40,786, the total taxable turnover being Rs. 2,94,482. It is said that the assessee paid the tax imposed on the above amount. The assessee was reported to have been carrying on business under the jurisdiction of the Patna Urban Circle also and a notice under Section 13(5) of the Bihar Sales Tax Act, 1947, was given to him to file returns and to produce his books of account. The assessee, however, did not submit his returns or produce his account books and, on the 30th of November, 1951, he was assessed by the Assistant Superintendent of Sales Tax by one order for the years 1948-49, 1949-50 and 1950-51, the taxable turnover being Rs. 1,03,214, Rs. 1,09,824 and Rs. 1,66,372, respectively, the total coming to Rs. 3,79,410. The total tax payable on the above amount was assessed at Rs. 11,599 and a total penalty of Rs. 11,401 was imposed for the period in question for the failure of the assessee to apply for registration of his business in the Patna Urban Circle and for his having deliberately failed to comply with the terms of the notice for filing of the returns and producing of the account books. A notice of demand was issued on the 15th of December, 1951 and it was received by the assessee on the 18th of December, 1951. He, thereafter, applied for a certified copy of the assessment order on the 29th of January, 1952 and the copy was delivered to him on the 1st of February, 1952. He preferred an appeal against the assessment order before the Deputy Commissioner of Sales Tax on the 13th of February, 1952, under Section 24(2) of the Bihar Sales Tax Act. As required by that section, the appeal should have been presented within 45 days of the receipt of the demand notice and, after deducting the time taken in obtaining the certified copy of the assessment order, the appeal should have been filed on the 5th of February, 1952. The appeal was obviously therefore filed beyond time and the explanation of the assessee was that he was ill from the 25th of January, 1952, to the nth of February, 1952 and was thus prevented from filing the appeal in time. In support of this contention, the assessee produced a medical certificate. The Assistant Commissioner of Sales Tax, who heard the appeal, held it to be time-barred as the appeal was filed in the Court of the Deputy Commissioner of Sales Tax, which was not the proper Court in which it should have been filed and it was actually received by the Court of the Assistant Commissioner of Sales Tax on the 24th of May, 1952. The Assistant Commissioner of Sales Tax, therefore, took the view that the appeal was filed in the proper Court after a lapse of 56 days from the date of the service of the demand notice. He also held that the filing of the appeal was not regular inasmuch as the 20 per cent. of the tax was not deposited until the 15th of June, 1953. He did not accept the explanation of the assessee for the delay in filing the appeal due to his illness and doubted the genuineness of the medical certificate produced by him, which appeared to him to have been freshly written. He, therefore, struck off the appeal as being time-barred. The assessee then moved the Deputy Commissioner of Sales Tax in revision, who agreed with the Assistant Commissioner of Sales Tax on the question of limitation and dismissed the application in revision without going into the merits of the assessment order. An application in revision was filed before the Board of Revenue which also, holding the appeal to be time-barred, rejected the revision application. The assessee then made an application before the Board of Revenue under Section 25 (1) of the Bihar Sales Tax Act for referring certain questions of law to this Court, but the same was summarily rejected. An application under Section 25(2)(b) of the Act was then made to this Court by the assessee with a prayer to require the Board of Revenue to refer certain questions of law to this Court for decision and, at the direction of this Court, the Board of Revenue has, under Section 25(3) of the Act, referred the following questions of law to this Court for its decision :-

(3.) The contention put forward by the assessee on the merit of the case is that he has been assessed twice over for the same taxable turnover both in the Urban as well as in the Rural Circles and this contention is the subject-matter of the first question referred to this Court. But before that question could be gone into, it is necessary to deal with the second question, the decision of which depends upon the decision of the question of limitation in filing the appeal against the order of assessment made by the Assistant Superintendent of Taxes. As already observed, under Section 24(2) of the Sales Tax Act, an appeal has to be presented within 45 days of the receipt of the demand notice. In this case, admittedly, the demand notice was received on the 18th December, 1951. The last day of limitation for filing the appeal, therefore, was the 1st of February, 1952. The assessee, however, applied for a certified copy of the assessment order on the 29th of January, 1952 and the same was delivered to him on the 1st of February, 1952. He thus took four days to obtain the certified copy of the order; and even if that period is deducted in computing the period of limitation, the last day of limitation for filing the appeal would have been the 5th of February, 1952. It was, however, actually filed on the 13th of February, 1952, in the office of the Deputy Commissioner of Sales Tax. Assuming the presentation of this appeal in the office of the Deputy Commissioner to be a proper presentation, the appeal was obviously barred by time by eight days and, therefore, the Assistant Commissioner of Sales Tax was perfectly justified in holding the appeal to be time-barred. The question, however, is whether the delay in filing the appeal could be condoned in this case. Sub-section (2) of Section 24 of the Act empowers the authority before whom the appeal is filed to admit the appeal after the expiration of the period of 45 days if he is satisfied that the appellant had sufficient cause for not presenting the appeal within that period. The explanation of the assessee is that he fell ill on the 25th of January, 1952 and his illness continued up to the nth of February, 1952 and he was thus prevented from presenting the appeal within the prescribed period. In support of this contention, as already observed, the assessee produced a medical certificate. That certificate appears to have been granted on the 16th of February, 1952, by Dr. P.K. Sen Gupta, a registered medical practitioner, three days after the presentation of the appeal and that medical certificate was filed in Court, about one year and eight months after it purported to have been granted, on the 5th of October, 1953. The Assistant Commissioner of Sales Tax has observed in his judgment dated the 2nd of November, 1953, that that medical certificate appeared to him to have been freshly written. He also observed that the application for copy was made during the period the assessee alleged to have been ill. He, therefore, did not accept the explanation of the assessee for the delay in presenting the appeal and rejected the same as being time-barred. The Deputy Commissioner of Sales Tax further observed that the delay in filing of the appeal was not due to circumstances beyond the control of the assessee inasmuch as even the application for obtaining the certified copy of the assessment order was made only about three days before the last day for filing the appeal. In other words, he took the view that the assessee was not diligent in taking steps for prosecuting the appeal and, therefore, he could not be said to have been prevented by sufficient cause from filing the appeal within the prescribed period. The Board of Revenue also in its resolution on the revision application held that the plea of illness taken by the assessee before the appellate Court had no substance, Apart from the above ground, it also agreed with the appellate Court in respect of the unjustified delay in depositing 20% of the admitted tax.