JUDGMENT
Ramaswami, J.
1. In this case the petitioner was assessed to sales tax under Section 10(5), Bihar Sales Tax Act by the Sales-tax Officer of Darbhanga on a taxable turnover of Rs. 3,78,084 for the period from 1-7-1946 to 31-3-1947. The tax assessed was Rs. 5907 and odd and a penalty equal to the amount assessed was also imposed on the petitioner. The assessment order is dated 29-9-1948. The assessee filed an appeal before the Commissioner of Sales-tax. The appeal was allowed and the case was remanded to the Sales-tax Officer for further action. An application in revision was filed before the Board of Revenue on 2-6-1949 on behalf of the petitioner. The application was rejected by the Board by its order dated 5-9-1949. The petitioner then filed an application on 3-12-1949 requiring the Board of Revenue to refer certain questions of law for the determination of the High Court. The Board of Revenue heard the parties on 22-7-1950, and rejected the application for reference on the same date. Being dissatisfied with the order of the Board the petitioner filed an application to the High Court who asked the Board of Revenue to state a case on the following question of law :
‘Whether on the facts and circumstances of the case the applicant is a dealer within the meaning of Bihar Sales Tax Act 6 of 1944, and is liable to be taxed as such?”
2. When the hearing commenced Mr. Gopal Prasad on behalf of the State of Bihar raised a preliminary objection that the petitioner applied to the Board of Revenue for making reference to the High Court more than sixty days after the revision application was dismissed by the Board of Revenue. It was submitted by the learned counsel that the Board of Revenue rightly refused to make reference and the High Court ought not to have called for a statement of the case under Section 21(3), Bihar Sales Tax Act of 1944. The argument of the learned counsel is founded upon Sections 21(1) and 21(2), Bihar Sales Tax Act of 1944. Section 21(1) states :
“Within sixty days from the passing by the Board of Revenue of any order under Sub-section (3) of Section 20 affecting any liability of any dealer to pay tax under this Act, such dealer may, by application in writing accompanied by a fee of one hundred rupees, require the Board to refer to the High Court any question of law arising out of such order.”
Section 21(2) provides :
“If, for reasons to be recorded in writing, the Board of Revenue refuses to make such reference, the applicant may, within thirty days of such refusal, either (a) withdraw his application (and if he does so, the fee paid shall be refunded) or (b) apply to the High Court against such refusal.”
Section 21(3) is also important. It states :
“If upon the receipt of an application under Clause (b) of Sub-section (2), the High Court is satisfied that such refusal was justified, it may require the Board of Revenue to state a case and refer it to the High Court and on receipt of such requisition the Board shall state and refer the case accordingly.”
3. On behalf of the assessee Mr. Baldeva Sahay contended that the case was governed by the Bihar Act 19 of 1947 and that under Section 25(1) of this Act the assessee may apply to the Board of Revenue for making reference to the High Court within ninety days from the date of the order passed by the Board of Revenue. In this view of the matter Mr. Baldeva Sahay submitted that the application of the assessee was not barred by limitation. In my opinion the argument of Mr. Baldeva Sahay cannot be accepted as correct. The assessment in question in the present case is for the period from 1-7-1946 to 31-3-1947. The Act of 1947 came into force on 1-6-1947. The Act of 1947 while repealing the Act of 1944 provides that
“nothing in this repeal shall affect any liability to pay tax incurred before the date of such repeal and proceedings ending on the said date, as also all proceedings initiated after the commencement of this Act but relating to any such liability as aforesaid shall be continued and disposed of or initiated and disposed of, as the case may be, as if this Act had not been passed.”
It is manifest, therefore, that Section 21 of the Act of 1944 applies to this case and the petitioner was bound to make an application to the Board of Revenue within sixty days from the passing of the order.
4. The present case falls within the principle of the decision in –‘Doma Sao v. State of Bihar’, AIR 1952 Pat 357 (A), in which it was held that if the Board of Revenue improperly made reference beyond the period of limitation prescribed by Section 21, Sales Tax Act the High Court was certainly capable of entertaining objection to the statement of the case and if it came to the conclusion that the case should never have been stated the High Court was not compelled to express its opinion upon the questions referred. A similar principle has been enunciated in an earlier case of this Court in –‘Hukmi Chand v. Commr. of Income-tax’, 2 Tax Cas 140 (B). In that case an application was made by an assessee under Section 66(2), Income-tax Act to the Commissioner of Income-tax for a reference to the High Court more than a month after the passing of the order under Section 31. The application was rejected by the Commissioner of Income-tax on the ground that no question of law arose. But on an application under Section 66(3) the High Court without their attention being drawn to the dates in the case directed the Commissioner to state a case. A preliminary objection was raised to the hearing of the reference. It was held by Sir Dawson Miller C. J. that the assessee was not entitled to apply to the High Court under Section 66(3) of the Act and the assessment must therefore be confirmed. In this connection the decision of the Special Bench of five Judges of the Madras High Court in –‘Subbiah Ayyar v. Commr of Income-tax, Madras’, AIR 1930 Mad 449 (S.B.) (C), is also relevant. In that case the assessee did not make an application to the Income-tax Commissioner under Section 66(2), Income-tax Act to refer a point of law to the High Court within one month of the passing of an order under Section 31 or 32 of the Act. It was held by the Special Bench that the assesses cannot ask the High Court to direct the Commissioner to refer such a question to the High Court and that neither Section 66(1), Income-tax Act nor Section 45, Specific Relief Act, empowered the High Court to direct the Commissioner to refer such a question under such circumstances.
5. For the reasons which I have stated I think that the preliminary objection must succeed and the Board of Revenue was justified in refusing to make reference. It follows that the case should never have been stated under Section 21(3) and the High Court is not compelled to express its opinion on the question of law referred. The assesses must pay the cost of reference. Hearing fee is assessed to be a sum of Rs. 200/- which is payable by the assesses.
Sarjoo Prosad, J.
6. I agree that the preliminary objection taken by Mr. Gopal Prasad for the Sales-tax Department must succeed. The petitioner applied to the Board of Revenue for making a reference to the High Court more than 60 days after the Board of Revenue had dismissed the revision application of the assessee. The contention of the learned counsel for the assessee that the application filed under Section 21(2), Bihar Sales Tax Act, 1944, was within time from, the date of refusal by the Board of Revenue to make a reference to this Court, and as such should be entertained and heard on merits cannot be accepted for the additional reason that the sub-sections of Section 21 of the Act are all interconnected and inter-dependent and have got to be read together. It is true that there is a separate period of limitation provided under Sub-section (2) of Section 21 within which the assessee can make an application to the High Court against the order of refusal by the Board. But then if the application made to the Board itself for reference under Sub-section (1) is beyond time, then the provisions of Sub-section (1) of Section 21 cannot be circumvented by filing an application to this Court within time from the date of refusal by the Board. The language of Sub-section (3) itself suggests that the High Court will require the Board of Revenue to state a case only where the High Court was not satisfied that such refusal was justified. The refusal evidently would be justified if the application to the Board for reference was made beyond time, and in those circumstances it would not be open to the High Court to call for a statement of case, because whatever the other reasons may be on merits, the order of the Board refusing ten make a reference would be on the face of it legal and valid. If it were otherwise, then an assessee could at any time without regard to the provisions of Sub-section (1) of Section 21 make an application to the Board for making a reference, and on such refusal apply to the High Court within the time provided under Sub-section (2) to call for a statement of case and have the matter decided on merits. This could not be the intention of the law.
7. The application of the assessee, must,
therefore, fail and has to be dismissed with
costs.
