COMMERCIAL TAXES OFFICER PALI Vs. KANYALAL MOHANLAL

JUDGEMENT

(1.) THIS is an application by the Commercial Taxes Officer, Pali (hereinafter referred to as the Assessing Authority) under sec. l5 (2) (b) of the Rajasthan Sales Tax Act, 1954 (which will hereinafter for the sake of shortness be referred to as 'the Act') for directing the Board of Revenue for Rajasthan to state a case and refer the following question of law arising out of its order dated March 14, 1978, passed in Special Appeal No. 121 of 1974 : ST Pali : - "whether under the facts and circumstances of the case the Board of Revenue was justified in holding that to use one ST. 17 form for more than one transaction is only a technical breach although according to the provisions of Rule 25 (c) of the R. S. T. Rules prior to 7. 3. 69 it was not permissible?" The relevant assessment period is from November 3, 1964 to October 24, 1965. The Assessing Authority by its order dated Feb. 4, 1967 disallowed exemption-on the sales effected by the assessee through S. T. 17 form which covered more than one transaction. Aggrieved by the order of the Assessing Authority the assessee filed an appeal before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, who set aside the order of the Assessing Authority by his order dated March 22, 1969. The Assessing Authority thereupon filed a revision application before the Board of Revenue which upheld the Deputy Commissioner's order by its decision dated April 5, 1973. Dissatisfied with the order of the Single Member of the Board the Assessing Authority filed a special appeal before the Division Bench of the Board, which dismissed the same. Thereafter the Assessing Authority made an application under section 15 (1) of the Act but the same having been disallowed, the present application under section 15 (2) of the Act has been filed in this Court, and it has been prayed that the Board may be asked to state the case and refer the question of law arising out its order.

(2.) WHILE dealing with the application under S. 15 (1), the Board observed that the view taken by it at the time of decision of the appeal was correct. In our opinion, this is not the correct way of disposing of an application under sec. 15 (1) of the Act. The Board must find out whether any question of law arises out of its order. There is no denying the fact that in the present case a question of law does arise, and. therefore, ordinarily the case should have been stated to this Court under section 15 (1) unless it was found that the view of law taken by the Board had been settled by the High Court of the State or the Supreme Court. In such a case only the Board can refuse to make a reference even if the question of law arises out of its order, otherwise it cannot refuse to state a case and refer the question of law to this Court merely on the ground that the view taken by it in the appeal is correct or that the case is covered by its earlier decision. We have considered it necessary to lay down this principle so that in future there may not be any misconception about the scope of section 15 (1 ).