Amin Bros. v. State Of Bihar

Ramaswami, J.:— These cases are stated by the Board of Revenue under section 21(3) of the Bihar Sales Tax Act.

The following question of law has been referred in both the statements:—

“Whether the order dated 30th April 1948 dismissing the appeal for default without deciding the question raised by the appellant in his memorandum of appeal to the Commissioner is intra vires and in accordance with law.”

On behalf of the assessee Mr. S.N Dutta cited section 20 of the Act which provides that within sixty days from the passing of an order of assessment, with or without penalty, under section 10, any dealer may, in the prescribed manner, appeal to the prescribed authority against such assessment or penalty or both. Under section 20(2) the appellate authority, in disposing of any appeal under sub-section (1), may confirm, reduce, enhance or annul the assessment or penalty, if any, or both, “subject to such rules as have, been prescribed”. Reference was made to rule 57 of the Bihar Sales Tax Rules which is to the following effect:—

“Summary rejection of appeal.— If the memorandum of appeal is not in Form XXIV or if all the requirements of the form are not duly complied with, the appeal may be summarily rejected after giving the appellant such opportunity as the appellate officer thinks fit to amend such memorandum. The appeal may also be summarily rejected on other grounds which should be reduced to writing by the appellate officer:

Provided that before an order rejecting the appeal is passed, the appellant shall be given a reasonable opportunity of being heard.”

It was urged on behalf of the assessee that in this case the Commissioner has not purported to act under section 57 of the Rules but instead fixed a date for, hearing under rule 58 which states:—

“If the appellate officer does not reject the appeal summarily, he shall fix a date for hearing the appellant or his agent.”

From the ordersheet of the Commissioner printed at page 6 of the paper-book it appears that on 9th February 1948 after the memorandum of appeal was presented the Commissioner fixed 12th of April 1948 for hearing. On the same date he called for a report and asked the Sales Tax Officer to inform the parties of the date fixed. The ordersheet dated the 29th of April 1948 shows that on that date no lawyer appeared for the appellant but a petition for time was presented on the ground that certain documents were filed before the High Court and they had not yet been returned. The reupon the Commissioner dismissed the appeal for default on the ground that the lawyer should have been present to show

“how he was justified in asking for time”.

It was contended by the learned counsel that since the Commissioner did not summarily reject the appeal under rule 57, but had fixed a date for hearing under rule 58 the appeal should have been decided upon merits and the Commissioner ought to have given reasons for confirming the assessment made by the Sales Tax Officer. Since no reasons have been given by the Commissioner it was argued that the order of dismissal for default was ultra vires and not in accordance with law. In this context reference should be made to M.X De Nornha & Sons, Kanpur v. Commissioner of Income-tax, U.P in which a notice fixing the date of hearing of appeal was sent by the Appellate Tribunal by registered post to the address given by the assessee firm. The notice was received by an employee of the firm, who used the seal of the firm, on its behalf. On the day fixed for hearing of the appeal and on the next day to which the case was adjourned by the Appellate Tribunal, the assessee did not appear and the Tribunal dismissed the appeal for default. On these facts it was held by the Allahabad High Court that the Tribunal should have decided the case on merits and the dismissal of the appeal for default could not be said to be a hearing of the appeal and its determination. The provisions of section 20 of the Bihar Sales Tax Act are in pari materia with section 31 of the Indian Income-tax Act. In my opinion the word “determination” in section 20(2). Of the Bihar Sales Tax Act must be construed to mean a decision on the point raised in the case and not merely an order of dismissal for default. It is clear that the Commissioner acted illegally in dismissing the appeal for default and confirming the assessment without giving reasons in support of his order.

For these reasons I would answer the question referred to the High Court in negative. There will be no order for costs.

Sarjoo Prosad, J.:— I agree. The reference in both the cases should be answered in the manner indicated, and for the reasons stated by my learned brother.

References answered.

G.N.P