DISPENSING CHEMISTS Vs. STATE

JUDGEMENT

(1.) AGGRIEVED by the appellate order passed on 23. 7. 61 by the learned Deputy Commissioner Sales Tax Appeals Jodhpur the assessee has come up in this revision under sec. 14 of the Rajasthan Sales Tax Act, 1954. The preliminary objection regarding the point of limitation has been raised by the learned counsel for the State. We therefore propose to confine ourselves to the decision of the preliminary point of limitation only. The learned counsel for the State pointed out that the order under revision was passed on 27. 3. 61 and the application for obtaining copy was presented on 19. 7. 61. The copy was issued on 2. 4. 62 i. e. a period of 8 months and 14 days appears to have been taken in obtaining the copy of judgment under revision. The learned counsel further pointed out that the application for obtaining copy was presented after 3 months and 21 days from the passing of the original order dated 27. 4. 61. He further alleged that even after obtaining the copy of judgment, the revision was filed on 8 9-62. Thus a total period of 17 months and 11 days has been taken by the petitioners to file this revision petition. Consequently the revision petition is time barred by 2 months and 27 days. He further pointed out that the applicant had not submitted any reasonable grounds for condonation of this delay. The learned counsel for the petitioner however submitted as follows : - The learned Deputy Commissioner had not pronounced his judgment on 27. 3. 61. As per rule 36 of the Sales Tax Rules, 1954 the petitioner was entitled to a copy of the judgment This copy was issued on 22. 6. 61 and was received by the petitioner on 27. 6. 61. In support of this contention he produced a verification from the office of the Deputy Commissioner Sales Tax Jodhpur. The learned counsel for the petitioner therefore prayed that the limitation ought to run from 27. 6. 61 instead of 27. 3. 61. The application for obtaining copy was submitted on 19. 7. 61. The copy was delivered on 2. 4. 62 i. e. after 8 months and 14 days. The counsel for the petitioner further produced an acknowledgement due receipt of the Board of Revenue dated 7. 9. 62 and tried to establish that the revision was presented in the Board of Revenue on 7. 9. 62 although the receipt endorsement on the revision petition of the Board of Revenue is as 8. 9. 62. The learned counsel further submitted that the period from the date of obtaining copy and date of delivery of the memo of revision is 5 months and 6 days and adding to this another period of 22 days which was taken by the petitioner from the date of the receipt of the copy of the judgment and the date on which a copy of the judgment was applied for, the total period taken by the petitioner comes to 5 months 28 days. Hence the revision has been presented within limitation i. e. 2 days earlier because the total period allowed is six months. For calculating the period of limitation two points are involved in this case. The first is whether the period of limitation should be deemed to run from the date of the communication of the judgment to the assessee or from the date when a decision is said to be taken. The second point is whether the revision should be treated to have been presented on the date which is on receipt for acknowledgment due or from the date on the endorsement on the petition. The learned counsel for the petitioner has drawn our attention towards the decision taken by the High Court of Madhya Pradesh in the case of Sheoji Ram Parmanand vs. Commissioner of Sales Tax M. P. reported in Sales Tax Cases Volume XIV page 9 in which it has been held: "communcation by the tribunal of any order" occurring in section 44 (1) of the Madhya Pradesh General Sales Tax Act, 1958, require communication of the order itself and not merely a communication of intelligence of that order. Further the word "communication" also implies actual and not merely imputed or constructive communication, except as provided in Rule 63 (4) of the Rules made under the Act. Therefore time does not commence to run under Sec. 44 (1) before a copy of the order passed in appeal is communicated to the appellant. " It has been further held : - "that the Board of Revenue fixed a specific date for order with previous notice to the parties and actually passed the order on that date can have no bearing on the question of commencement of the limitation. " In the present case there is no controversy over the fact that a copy of judgment should be attached with the memo of revision, as according to the provisions of the memo of revision, as according to the provisions of rule 36 a copy of every order of the appellate authority disposing of an appeal shall be sent to the appellant and to the assessing authority concerned, either by personal delivery or by post. We have carefully examined the entire record in this case and our attention has been drawn to an order of the learned Deputy Commissioner dated 27. 3. 61 which runs as follows : - "appeal accepted in part as discussed in judgment" These lines in the order sheet are very confusing as they do not disclose which part of the appeal is accepted and which part is rejected. These lines only give some clue about the so called judgment. The order sheet referred to above, neither states that the judgment was pronounced there and then or that the copy of the judgment was delivered personally to the appellant on that date. On the other hand we have seen that the copy of the judgment was delivered to the appellant on 27. 6. 61 which is clear from the record and which is duly verified by the appellate authority on the application of the assessee. The aggrieved party cannot make up its mind to file a revision unless he has studied the pros and cons of the judgment thoroughly and has further taken legal advice from his counsel. As nothing is clear from the order sheet dated 27. 3. 61, the assessee had to wait until he received the copy of the judgment itself which was delivered to him on 27. 6. 61. The assessee therefore was under the bona fide belief to calculate the limitation from the date of receiving the order. Hence in all fairness the limitation should be deemed to run from 27. 6. 61, the date when a copy of the judgment was actually endorsed to the assessee. As regards the second point the memo of revision was sent by registered post to the Board of Revenue and the acknowledgment due was received by the assessee which bears the date as 7. 9. 62. So 7. 9. 62 should be considered the final date on which the revision should be deemed to be presented before the Board of Revenue. The legislature has given special privilege vide rule 36 of the Sales Tax Rules that a copy of the judgment should be delivered to the assessee. It therefore stands to reason that the assessee is entitled to full benefits of this rule. We therefore hold that in the present case the period of limitation should run from 27. 6. 61 the date on which the judgment of the appellate court was communicated to the assessee. We further hold that the revision of the assessee would be deemed to have been presented in the Board of Revenue on 7. 9. 62 which is the date on the acknowledgement receipt. The revision be heard on merits. Per R. N. Madhok - I agree with my learned colleague that under the circumstances of this case, this revision petition should not be dismissed on the point of limitation. However, I respectfully differ from him in the manner of my arriving at this conclusion. The order sheet of the appellate authority dated 27. 3. 61 merely contained the following observation : "appeal accepted in part as discussed in judgment. " Obviously, in the face of such a record on the order sheet the date of the impugned order should be reckoned as the date on which the detailed order was communicated to the petitioner. As required under Rule 36 of the rules framed under the Rajasthan Sales Tax Act, 1954, a copy of the appellate order was delivered to the petitioner on 27. 6. 1961. But even before that the petitioner had himself applied for a certified copy of the appellate order which was delivered to him on 2. 4. 1962. Thus, the petitioner had knowledge of the appellate order in all its details on 2. 5. 1962, that is, earlier than the copy of the appellate order was delivered to him under Rule 36. The period of limitation should, in this case therefore, run from 2. 4. 1962. Since this petition was received in the Board on 7. 9. 62, it is well within six months from 2. 4. 1962. It is for this reason that I consider that this petition is not barred by limitation. The decision of the Madhy Pradesh High Court relied upon by my learned colleague has reference to this provision of the law in that State which is that the period of limitation runs from the date of the communication of the order. As against this, the provisions in the Rajasthan Sales Tax Act, 1954 is that the petition for revision should be filed "within six months of the date of the order" (sec. 14 of the Rajasthan Sales Tax Act ). In this case the date of the order of the appellate authority must be deemed to be the date on which the petitioner had knowledge of the order in all its details. He had a certified copy of the appellate order in his hands on 2. 4. 1962 and that should be considered to be the date of the order. With these observations I concur in this revision petition not being treated as barred by limitation and in its being heard on merits. .