Director Of Supplies... v. Member, Board Of Rev...

The Judgment of the Court was delivered by

Lahiri, C.J:— The points involved in this rule are of some importance. A decision of the points will turn on an interpretation of the expression “passing of an order” as used in section 21 of the Bengal Finance (Sales Tax) Act, 1941. The assessee is the petitioner in this Rule and he filed the petition upon which this Rule has been issued under section 21(2)(b) of the Bengal Finance (Sales Tax) Act. The facts which are not in dispute may be briefly stated as follows. The assessee filed an application for revision before the Board of Revenue against an order made by the Commercial Tax Officer affirmed on appeal by the prescribed authority and on revision by the Commissioner. The application before the Board of Revenue was under section 20(3) of the Act. On 26th September, 1958, the Board of Revenue dismissed the assessee's application and the order of the Board of Revenue was communicated to the assessee on 14th October, 1958. The terms of the letter by which the order of the Board of Revenue was communicated to the assessee are as follows:—

“The above petitions have been rejected by the Board. The Board's orders dated 26th September, 1958, passed in the matter are open to inspection on any day during office hours.”

2. It is admitted that this letter dated 4th October, 1958, reached the assessee on 14th October, 1958.

3. On 17th October, 1958, the assessee filed an application for a certified copy of the order and he obtained a certified copy of the order on 22nd November, 1958. On 2nd January, 1959, the assessee filed an application requiring the Board of Revenue to refer to the High Court certain questions of law arising out of the order of the Board of Revenue. This application was dismissed by the Board on the ground that it was filed more than sixty days after the date of the passing of the order by the Board. The assessee thereafter moved this Court under section 21(2)(b) of the Act and obtained this Rule.

4. The only question that falls for consideration in this Rule is, what is the date of starting point of limitation on the facts of this case. On behalf of the assessee it is contended by Mr. Kar that the limitation of sixty days provided for by section 21(1) of the Act runs from the date of communication of the order of dismissal to the assessee and the assessee is further entitled to deduct the period taken by him for obtaining a certified copy of the order of the Board. The time taken for obtaining a certified copy of the order can be deducted if section 12(2) of the Indian Limitation Act applies to this case. According to section 29 of the Indian Limitation Act the provisions of section 4, sec-tions 9 to 18 and section 22 will apply to a special or local law only in so far as and to such extent to which they are not expressly excluded by the special or local law. There is nothing in the Bengal Finance (Sales Tax) Act of 1941 to exclude the operation of the whole or any part of section 12 of the Indian Limitation Act. Accordingly, section 12 is certainly attracted to a proceeding under the Bengal Finance (Sales Tax) Act. But the difficulty of applying section 12(2) to a proceeding like the present one is that the operation of section 12(2) is limited to an appeal, an application for leave to appeal, and an application for a review of judgment. The application filed by the assessee before the Board of Revenue under section 21(1) of the Bengal Finance (Sales Tax) Act, 1941, does not come under any of the categories mentioned in section 12(2) of the Indian Limitation Act. It is neither an appeal nor an application for leave to appeal nor an application for review. The result is that section 12(2) though attracted to a proceeding under the Bengal Finance (Sales Tax) Act by section 29 of the Indian Limitation Act, excludes itself by its own language from the present proceeding and the assessee is not entitled to exclude the time requisite for obtaining a copy of the order against which the application for reference under section 21(1) of the Bengal Finance (Sales Tax) Act was filed. This view of the scope of section 29 read with section 12(2) of the Indian Limitation Act was taken by a Full Bench of the Allahabad High Court in the case of Gopaldas Saravdayal v. Commissioner of Sales Tax [1956] 7 S.T.C 360; I.L.R 1956 1 All. 53.. I respectfully agree with the view taken by the Allahabad High Court in that case and relying upon that decision and the reasons given by me, I would respectfully differ from the view taken by Chatterjee, J., sitting singly, in the case of India Ice & Cold Storage Co., Ltd. v. The Member, Board of Revenue, West Bengal, and also the view taken by the Patna High Court in the case of Mohan Lal Hardeo Das v. Commissioner of Income tax, Bihar and Orissa A.I.R 1930 Pat. 14; I.L.R 9 Pat. 172., and also other cases in which it has been held that section 12(2) of the Indian Limitation Act applies to a case which is neither an appeal nor an application for leave to appeal nor an application for review of judgment.

5. So far as this Court is concerned Bose, J., has followed the Full Bench decision of the Allahabad High Court, in preference to the decision of Chatterjee, J., in the case of India Ice & Cold Storage Co. Ltd. v. The Member, Board of Revenue, West Bengal, in an unreported judgment in the case of Calcutta Cloth Agency v. S. Banerjee Civil Revision 2142 of 1955 decided on 3rd April, 1957.. I agree with the view taken by Bose, J., in the aforesaid case as to the scope of section 29 read with section 12(2) of the Indian Limitation Act. I accordingly hold that the petitioner is not entitled to exclude the time taken for obtaining a certified copy of the order of the Board of Revenue under section 12(2) of the Indian Limitation Act.

6. The second point raised on behalf of the petitioner is as to the date from which the period of limitation starts. In my opinion, in a case like the present one, where the order of the Board of Revenue was not pronounced in open Court, the date of passing of the order is the date on which the order was communicated to the parties and not the date on which the order was actually signed by the Member, Board of Revenue, without notice to the assessee. This view is supported by a large body of decisions which have been noted by Bose, J., in Calcutta Cloth Agency v. S. Banerjee and this decision is also followed by Sinha, J., in the case of Nripendra N. Majumdar v. N.M Bardhan 1959 A.I.R 1959 Cal. 219.. It is not necessary to refer to the earlier decisions which support this view. The passing of an order implies the communication or publication of the order and till that order is actually published or communicated the order cannot be said to have been passed. I therefore hold that the starting point of limitation in the present case is 14th October, 1958, on which date the order of the Board of Revenue was communicated to the assessee.

7. On behalf of the petitioner it has been further contended that the communication or publication of the order does not mean the communication of a bald statement to the effect that a certain order has been passed, but a communication of the entire contents of the order which has been passed. In support of this proposition reliance has been placed upon a decision of the Nagpur High Court in the case of Govindji Murarji v. Commissioner of Sales Tax, Madhya Pradesh, Nagpur. In that case the order sought to be challenged was passed by the Revenue authorities without notice to the parties and the question that was raised was that the period of limitation does not begin to run until the order is actually communicated to the assessee. Their Lordships held that for the purposes of limitation the order was passed when a copy of it was received by the assessee. The notice of the order in that case was to the effect that the application filed by the assessee had been rejected on a particular date by the Board of Revenue. Upon these facts their Lordships made the following observations in paragraph 15 of the judgment:—

“It cannot be the intention of the Legislature that the authority signing an order in the absence of a party should not communicate its decision to him and that the right of appeal should depend on the sweet-will of the authority or its officials. In Secretary of State for India in Council v. Gopisetti Narayanaswami Naidu Gary, it was held that the ‘date of the decision’ for the purpose of limitation was the date when the decision was passed and the decision could not be said to be passed unless it was in some way pronounced or published under such circumstances that the parties affected by it had a reasonable opportunity of knowing what it contained. The expression ‘passing an order’ must, therefore, be so construed as to mean that it is passed in the presence of the parties or is passed on the date of which due notice is given to the parties or where no such date is fixed on the date the party receives a copy of the order. Merely intimating that the appeal or application is dismissed is not enough”.

8. From this passage it is clear that according to the Nagpur High Court limitation would run from the date of the making of the order, if the order is pronounced with notice to the parties, but when the order is passed without notice to the parties limitation would run from the date when the party affected by the order had a reasonable opportunity of knowing what it contained. Applying this test to the facts of the present case, it appears to me that the notice which was served by the Board of Revenue upon the assessee in the present case is equivalant to pronouncement of the order in open Court. It states that the Board of Revenue had dismissed the assessee's application and informs the assessee that he was at liberty to inspect the order on any day during office hours. This notice, in my opinion, gives the assessee a reasonable opportunity of ascertaining the contents of the order that was made by the Board of Revenue. The communication in the present case, in express terms gives the assessee an opportunity to inspect the order made by the Board of Revenue. This fact distinguishes the present case from the case decided by the Nagpur High Court. I am not expressing any opinion as to the effect of the notice if it had not given the assessee the liberty to inspect the order made by the Revenue authorities against him. I am accordingly of the opinion that the decision of the Nagpur High Court does not support the contention that the period of limitation starts from the date when the assessee gets a certified copy of the order even when the Revenue authorities inform the assessee that he is at liberty to inspect the order on any day during office hours. I am accordingly unable to hold on the facts of the present case that the starting point of limitation is 22nd November, 1958, when the certified copy of the order passed by the Board of Revenue was received by the assessee. In my opinion, the starting point is 14th October, 1958, when the order of the Board of Revenue was communicated to the assessee, and as the application under section 21(1) of the Bengal Finance (Sales Tax) Act was filed on 2nd January, 1959, it was barred by limitation and was rightly dismissed by the Board of Revenue. An application under section 21(2)(b) of the Bengal Finance (Sales Tax) Act presupposes a valid application under section 21(1) of the Act. Since the conditions of a valid application under section 21(1) of the Act have not been fulfilled the application under section 21(2)(b) of the Act must fail.

9. For the reasons given above, I would discharge this Rule, but, in the circumstances of the case, there will be no order as to costs.

Bachawat, J.:— I agree.

10. Rule discharged.