Das, C.J:— This is an application on behalf of the State of Bihar under sub-s. (2) of Section 25 of the Bihar Sales Tax Act, 1947. Mr. Kanhaiyaji, appearing on behalf of the opposite party, has taken a preliminary objection to the maintainability and competency of the application. His preliminary objection is the following. Mr. Kanhaiyaji has submitted that sub-s. (1) of Section 25 of the Bihar Sales Tax Act was amended by the Bihar Finance Act, 1952.
2. Under the original sub-section, as it stood before the amendment, the only person who had the right to make an application under sub-s. (1) of S. 25 was the dealer. By the amendment, the Commissioner may, also, make an application under sub-s. (1) of S. 25. In the case under our consideration, the assessment of sales tax related to a period prior to the amendment of sub-s. (1) of S. 25. The argument of Mr. Kanhaiyaji, therefore, is that S. 25, as it stood before the amendment of 1952, should apply in the present case and only the dealer has a right to make an application under sub-s. (1) of S. 25. Therefore, under sub-s. (2) of S. 25, also, the dealer alone can apply to the High Court against any refusal by the Board to refer any question of law to the High Court. This objection cannot, in my opinion, be sustained. In the present case, though the assessment related to a period earlier than the amendment made in 1952, the order which the Board of Revenue passed in revision was passed on 24-7-1953, that is long after the amendment of sub-section (1) of Section 25 of the Bihar Sales Tax Act.
3. Therefore, the principle laid down by us in ‘Chota Nagpur Banking Association Ltd. v. Commr. of I.T.B & O.’, AIR 1956 Pat 16 (A), will apply, and the Commissioner had the right to make an application to the Board for referring to the High Court any question of law arising out of the order of the Board of Revenue Ipassed under sub-s. (4) of S. 24. This preliminary objection urged by Mr. Kanhaiyaji must, therefore, be overruled.
4. However, this is not the end of the matter. After arguments were concluded before us, I pointed out to learned counsel for the parties that, under sub-s. (1) of Section 25 of the Bihar Sales Tax Act, the dealer or the Commissioner may by an application in writing, require the Board to refer to the High Court any question of law arising out of the order of the Board passed under sub-s. (4) of S. 24, affecting any liability of any dealer to pay tax under the Act.
5. Under sub-s. (1) of S. 25 after the amendment of 1952, the right to apply under that sub-section is given to the dealer or to the Commissioner. Sub-section (2) of S. 25 then says, ‘inter alia’, that, if the Board refuses to make a reference, the applicant may, within forty five days of such refusal, apply to the High Court against such refusal.
6. Sub-section (2) of S. 25 has to be read with sub-s. (1) of the said section. Therefore, if under sub-s. (1) the dealer or the Commissioner may make an application to the Board, under sub-s. (2), also, the dealer or the Commissioner may apply to the High Court against the refusal by the Board to refer any question of law to this Court. The section does not give the State of Bihar any right to make an application under sub-section (2) of Section 25 of the Bihar Sales Tax Act.
7. The learned Government Advocate has pointed out to us that, all throughout the proceedings before the Deputy Commissioner of Sales Tax and the Board, the State of Bihar was made a party. That may be so. We have, however, to interpret sub-s. (2) of S. 25 as it stands, and it is clear to us that, under that sub-section, the State of Bihar has no right to make an application to this Court against the refusal of the Board to refer any question of law to this Court.
8. The expression “Commissioner” has been defined in the Bihar Sales Tax Act and means any Commissioner of Sales Tax appointed under sub-s. (1) of S. 3. It is obvious that the Commissioner is an entirely different person or authority from the State of Bihar. We hold, therefore, that the State of Bihar has no right to make an application under sub-s. (2) of Section 25 of the Bihar Sales Tax, Act and, inasmuch as the application has been made by an authority which has now no right to make an application, the application is incompetent and not maintainable.
9. An application has been made to day on behalf of the Commissioner of Sales Tax an amendment of the substantive application be allowed and the Commissioner of Sales Tax be substituted in place of the State of Bihar. This application for amendment has been made on the footing that the description of the petitioner in the substantive application is a mere misdescription.
10. We cannot accept the view that the substantive application suffers from any misdescription, because the State of Bihar was entirely different from the Commissioner of Sales Tax and it cannot be said that the expression “the State of Bihar” was a misdescription of the authority known as “the Commissioner” under the Bihar Sales Tax Act. Secondly, we do not think that an amendment should be allowed in the circumstances of this case when more than forty-five days have already passed from the date of the refusal by the Board to refer any question of law to this Court. For the reasons given above, we hold that the application is not maintainable and must be dismissed. In the circumstances of the case, there will be no order for costs.
Kanhaiya Singh, J.:— I agree.
V.B.B
11. Application dismissed.