JUDGMENT
Nazir Ahmad, J.
1. A statement of the case has been submitted by the Commercial Taxes Tribunal, Bihar, Patna (hereinafter referred to as ” the Tribunal”), under Section 33(1) of the Bihar Sales Tax Act, 1959 (hereinafter referred to as ” the Act “), referring the following question of law for the opinion of this court:
” Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the petition for revision was barred by limitation ? ”
2. The relevant facts of the case may be culled out from the statement of the case as well as from the order dated December 21, 1971, of the Tribunal in Revision Case No. 95 of 1969. The revision application was filed against the order of the Deputy Commissioner of Commercial Taxes (Appeals), Bhagalpur Division, Bhagalpur, dated April 7, 1969, passed in Sales Tax Appeal MGST No. 2 of 1967-68. The revision application was filed before the Tribunal on June 28, 1969. Under Section 31(4) of the Act, the revision application could be filed within sixty days from April 7, 1969, i.e., till June 6, 1969. The Tribunal, therefore, found that the revision application was, prima facie, barred by limitation. The Tribunal also held that no deduction could be admissible for the time taken in the grant of certified copy, as it was applied for on June 12, 1969, after the period of limitation had expired. The Tribunal also found from the record of the Deputy Commissioner that the appeal was heard by him on March 20, 1969, when he fixed April 7, 1969, for passing the order on the appeal. The order sheet showed that the order dated March 20, 1969, fixing the date April 7, 1969, was passed immediately at the close of the hearing as vShri N. Sahai (wrongly mentioned in the order of the Deputy Commissioner as Shri R. N. Rai), advocate for the State, signed the order sheet, but no signature of the applicant’s advocate was taken. A report was called for from the Deputy Commissioner and in his report dated August 21, 1969, to the Tribunal, it was stated that the order of March 20, 1969, was made known to the applicant, as may be seen from the signature of the applicant’s advocate on the order sheet, but when it was pointed out to the Deputy Commissioner again that the order sheet did not bear the signature of the applicant’s advocate, the Deputy Commissioner sent a second report dated April 10, 1970, in which he stated that the signature of the applicant’s lawyer was omitted to be taken but the date fixed for orders was also notified through causelist. The applicant filed an affidavit on February 28, 1970, that the date fixed for orders was not made known to him or to his lawyer nor did he receive the informatory copy of the order at all and that he came to know of the order only on June 12, 1969.
3. The Tribunal held that the facts which are established in this case are that the appeal was heard on March 20, 1969, when both parties were present. The Deputy Commissioner had passed the order on that date fixing April 7, 1969, for passing of the appellate order as soon as the hearing was completed and as the signature of Shrt N. Sahai, advocate for the opposite party, had been taken on March 20, 1969, at the conclusion of the hearing, there was no reason to suppose that this order was passed behind the back of the parties after they had left. The Tribunal also held that the law does not prescribe that the signature of the parties should be taken in the order sheet or that the parties should be served with a notice of the date for order and that the responsibility is of the parties to ascertain the date fixed for orders and the law does not prescribe that the order should be served on them. The Tribunal found that negligence was committed by the Deputy Commissioner in not getting the signature of the applicant or his lawyer on March 20, 1969, but there was equal and contributory negligence by the applicant in not caring to ascertain the date fixed for orders at least from the cause list or by an enquiry after a few days. The Tribunal also held that no explanation was given on behalf of the applicant as to why no action was taken by him to ascertain the order passed on this appeal till over two months later on June 12, 1969. The Tribunal, therefore, held that the applicant had an opportunity of knowing the order passed on March 20, 1969, and, consequently, he had constructive knowledge of the order passed on the appeal on April 7, 1969. The Tribunal, therefore, held that the limitation will accordingly count from April 7, 1969, and so the revision application was barred by time.
4. It was also argued before the Tribunal that there was sufficient cause for the delay and it should be excused. The Tribunal held that there was no explanation for delay from June 6, 1969 (when the period of 60 days from the date of the order expired) to June 12, 1969 (when the certified copy was applied for), and again from June 24, 1969, to June 27, 1969, after the certified copy was received and the application was filed. The Tribunal, therefore, refused to condone the delay and did not admit the application.
5. Thus the Tribunal has held on the facts that the applicant could know the date of the order from the order dated March 20, 1969, or from the cause list dated March 20, 1969, The Tribunal has held as a fact that the order dated March 20, 1969, was passed in the presence of both the parties immediately after the hearing of both the parties was completed, which goes to show that the petitioner knew on March 20, 1969, that the order on appeal was to be passed on April 7, 1969. The Tribunal also held that there was no sufficient cause for not filing the application within the limitation period. Thus, the findings of the Tribunal are findings of fact which are binding on this court.
6. The learned advocate for the petitioner has relied on the case of Badri Prasad Ayodhya Prasad v. Commissioner of Sales-tax [1970] 25 STC 282 (All). In this case, the only question decided was that the question whether the revision application under Section 10(3) of the U.P. Sales Tax Act, 1948, was rightly dismissed as barred by limitation is a question of law arising out of the order of the Tribunal passed under Section 10(3)(i) of the Act and for that reason a reference of that question can be made by the revising authority to the High Court under Section 11 of the Act. This decision has not given any finding excepting that it is a question of law. This decision is not helpful to the petitioner in this case. The Tribunal referred the question of law on the basis of this decision. However, this decision does not lead us any further.
7. The learned advocate for the petitioner has also relied on the case of Laheriasarai Central Co-operative Bank Ltd. v. CIT [1968] 69 ITR 441 (Pat). In this case, along with memorandum of appeal to the Tribunal, the assessee did not send the chalan showing deposit of Rs. 300 in the treasury, being the filing fee, but sent an application that the assessee was exempted from payment of any fee in accordance with a notification issued by the Bihar Government of which communication was sent to the assessee by the Assistant Registrar of Co-operative Societies. After the expiry of the period of limitation, the office of the Tribunal intimated the assessee that the said notification was not applicable to the assessee and, hence, the appeal, was incompetent in the absence of the deposit of Rs. 100. Three days after receipt of the communication, the assessee deposited the sum of Rs. 100 in the treasury and transmitted the chalan to the Tribunal office. The assessee also filed an application for condonation of the delay stating that the assessee was prevented by a bona fide impression arising from the communication received by the assessee from the Assistant Registrar of Co-operative Societies from making the deposit of Rs. 100 at the time when the assessee presented the appeal to the Tribunal. The Tribunal, however, dismissed the appeal in limine, holding that the appeal was barred by time as in its view the reasons given by the asessee were not sufficient for condoning the delay. In those circumstances, the Patna High Court held that the Tribunal was not justified in refusing to condone the delay in depositing the prescribed fee in this case. The facts of the case were different and the decision in this case will not be applicable to the case of the petitioner where the delay was due to the petitioner himself.
8. I have already pointed out above that the Tribunal has held as a fact that the applicant could know on March 20, 1969, by perusing the cause list that the date was fixed for order on April 7, 1969. The Tribunal has also held as a fact, that the Deputy Commissioner passed order on March 20, 1969, fixing the case for orders on April 7, 1969, immediately after the arguments were heard and so the Tribunal took the view that the applicant could know the date on March 20, 1969, Under such circumstances, the Tribunal has given findings of fact against the petitioner and the findings of fact are binding on this court.
9. In view of my findings as above, I hold that the Tribunal was right in holding that the petition for revision was barred by limitation. The question is, therefore, answered against the petitioner and in favour of the opposite party. However, in the peculiar circumstances of the case, the parties will bear their own costs.
Uday Sinha, J.
10. I agree.