Rajesh Balia, J.
1. These two petitions raise a common question to be determined hence are being heard and decided together.
2. The petitioner has challenged the orders passed by the Rajasthan Tax Board, Ajmer, dated July 16, 1997 in Appeals Nos. 100 of 1995 and 101 of 1995. These appeals arose out of assessment orders made on January 15, 1994 in respect of assessment periods 1982-83 and 1983-84 respectively. The Tribunal has found that these two assessment orders being time-barred under Sub-section (2) of Section 10-B, as the same were not made within two years from the date of appellate order, in compliance of which they were made. The Tribunal has not examined the appeal on merit of the assessment.
3. For determination of the question whether the orders dated January 15, 1994, passed in each of the revisions were time-barred, the facts necessary for the present purpose may be noticed. In respect of two assessment periods, the original assessment orders were set aside by the Deputy Commissioner (Appeals), Commercial Taxes Department, Jodhpur, vide his order dated February 16, 1990 and the matter was remanded back to the assessing authority, namely, Assistant Commercial Taxes Officer, Special Ward, Anti-Evasion, Jodhpur, for framing the assessment in accordance with law. This order of Deputy Commissioner (Appeals) was served on the assessing officer on March 14, 1990. The files have been transferred from Assistant Commercial Taxes Officer, Special Ward, Anti-Evasion, Jodhpur, to Commercial Taxes Officer, Pali, because Assistant Commercial Taxes Officer at the relevant time lacked the pecuniary jurisdiction on account of the total turnover of the assessee for that period. This is how the assessment orders came to be made by Commercial Taxes Officer. On February 13, 1992 (as per assessing officer, and as per order of the Board such orders were made in fact on February 14, 1992) orders were made to the best judgment of the assessing officer. Thereafter, the dealer moved an application on June 19, 1992, for reopening of those assessment proceedings under Section 10-C of the Rajasthan Sales Tax Act, 1954. That application of the assessee was allowed on July 7, 1992. Thus, the proceedings, again came to life and the final assessment orders came to be made on January 15, 1994 after affording opportunity of hearing to the assessee. This assessment order dated January 15, 1994 was challenged before the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, who dismissed the appeals on December 30, 1994. Further appeals against the appellate order has been allowed by the Rajasthan Tax Board, Ajmer, as aforesaid by holding that assessment order dated January 15, 1994 were not made within two years of the orders passed by the Deputy Commissioner (Appeals), Commercial Taxes, Jodhpur, and were time-barred under Section 10B(2) of the Act. Hence, these two revisions by the Revenue.
4. It may be noticed that during this period the assessee has also challenged the assessment orders dated January 15, 1994, directly before this honourable Court by way of D.B. Civil Writ Petition No. 1502 of 1994, challenging the vires of Section 10-B(1), clause (iv). Since, the petition of assessee has been allowed by the Rajasthan Tax Board and the assessment order has been set aside at the commencement of the arguments. Learned counsel for the respondent submitted that at this stage, these revisions may be heard on the issue whether the orders dated January 15, 1994 were barred by time. If the orders are held to be barred by time under Section 10-B(2), the question of vires of provisions of Section 10-B(l)(iv) may become academic and the said writ petition may become infructuous.
5. It has been contended by the learned counsel for the Revenue that once orders were made on March 13, 1992, within two years of the service of appellate order on the assessing officer, the provision of Section 10-B(2) have operated. Thereafter, if as a result of taking recourse to remedial measures against the order dated March 13, 1992, fresh proceedings have come into existence, the orders made thereafter cannot be held to be time-barred with the aid of Section 10-B(2).
6. Learned counsel for the respondent joins issue and contends that the order dated March 13, 1992 was not the operative order having been set aside by the assessing officer himself. It cannot be taken into consideration and the only order dated January 15, 1994 is relevant for the purpose of limitation under Section 10-B(2). The order dated January 15, 1994 cannot by any stretch of imagination, be within limitation under Section 10-B(2). It was also contended by the learned counsel that order purported to have been made on January 13, 1992 itself was beyond limitation, because in fact it has been passed actually on March 14, 1992, as found by the Tribunal and therefore order having been passed beyond limitation on March 14, 1992, the application dated June 19, 1992 and any proceedings subsequent thereto cannot be of any avail, as they were wholly superfluous and can have no legal existence. He places reliance in the case of Jaipur Udyog Ltd. v. Commercial Taxes Officer, Special Circle, Ajmer [1979] 44 STC 456 (Raj).
7. Having carefully considered the rival contentions and relevant provisions of the Act, I am of the opinion that these revisions merit acceptance.
8. Section 10B : Prescribed time-limit for assessments or orders to be made under various circumstances envisaged under the Act. Subsection (1) of Section 10-B governs the period of limitation for completion of assessment proceeding generally in different circumstances by the assessing authority which are pending before him. Sub-section (2) : deals with time-limit for giving effect to directions of the appellate/revisional authority or to orders passed by respective superior authorities.
Section 10-B of Rajasthan Sales Tax Act reads as under, so far as it is relevant for the present purposes :
10-B. Time-limit for assessment.--(1) No assessment shall be made--
(i).....................
(ii).....................
(iii)....................
(iv) in cases falling under Section 10-C--after the expiry of two years from the date of receipt of application from the dealer :
Provided that assessments pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act, 1979 shall be completed within one year from the date of such commencement or within the period specified in clause (iii) or clause (iv) as the case may be, whichever is later :
Provided further that the Commissioner may, for reasons to be recorded in writing, extend in any particular case, the period specified in this sub-section by a period not exceeding six months.
(2) Notwithstanding anything contained in Sub-section (1),--
(i) where such assessment is made in consequence of or to give effect to, any order of an appellate or revisional authority or reference to the High Court or of a competent court, it shall be completed within two years of the communication of such order, to the assessing authority and all such assessments pending on the date of commencement of the Rajasthan Sales Tax (Amendment) Act, 1979 shall be completed within one year from the date of such commencement or within two years from the date of communication of such order to the assessing authority, whichever is later :
Provided that the Commissioner may, for reasons to be recorded in writing in any particular case extend the period specified in this clause by a further period not exceeding six months.
(ii) the period, if any, spent in the prosecution of a dealer, from the institution of a complaint to its final disposal or the period during which the assessment proceedings remain stayed, or restrained under the orders of any competent authority or court, shall be excluded in computing the period of limitation under Sub-section (1).'
9. So far as period for carrying out the direction of the higher forums by the assessing authority is concerned the provisions postulates that such assessment has to be made within two years of the communication of such order to assessing authority. In his discretion, for reasons to be recorded in writing, such period may be extended by the Commissioner in given case by further period not exceeding six months. As in the present case the order passed by the Deputy Commissioner (Appeals) directing the assessing authority to make fresh assessment was communicated to the assessing authority on March 14, 1990 by serving the copy of order on him, in pursuance thereof the order could have been made within two years of that date. There is no doubt that order made on March 13, 1992 is to be held within limitation. However, it is contended on behalf of the dealer that order made on March 14, 1992 was not within two years but beyond two years. According to learned counsel the date on which period commences and the date on which order is made are both to be included in computing the period that prescribes any sort of limitation.
10. There cannot be any doubt that if the order in the first instance passed in pursuance of the appellate order was beyond limitation, no amount of subsequent proceeding could have validated such orders. The orders would be stillborn in such case, no remedial action was required to be taken by the assessee against such stillborn orders.
11. However, I am not impressed with the contention raised by the learned counsel for the respondent in this connection that the order ought to have been made by March 13, 1992 only but this order has been made after March 13, 1992, as in the present case the order has been made in the first instance as a best judgment assessment order dated March 14, 1992 as per the finding of the Tribunal. The orders were time-barred in the first instance also and it was not framed within two years from the date of communication. Under the normal rule of computing period of limitation for doing anything, both the days, viz., date of commencement of period and the date of termination on which the question action is taken cannot be inclusive. It is well-established principle applicable to construction of statutes prescribing a time frame for exercising a particular right or prescribing limitation for doing particular act or pursuing remedy against any act is to exclude the first date and include the last. This is founded on the principle that time starts to run for the purpose of computation of limitation of any kind after the cause for such computation arises and the date on which such cause arose being only available partially and it cannot be practical to freeze the time at which the cause of action arose on the particular date, the first date is to be excluded. This well-recognised principle of construction has found recognition by legislation in the form of, Section 9 of the General Clauses Act, 1897, a Central enactment, and under Section 10 of the Rajasthan General Clauses Act, 1955.
12. Under Section 10-B(2)(i) : the expression used is thus 'to complete ......... within two years of communication of such order to the assessing authority'. Obviously, the period of two years can be computed only after the order has been communicated to the assessing authority. The date on which assessing authority has been served with the order in consequence of which fresh assessment order is to be made has to be excluded in fixing the date of commencement of period within two years of which the order has to be made. The period of two years would start running from the next date by excluding the date on which communication has taken place. In view of the clear provision of General Clauses Act referred to above and also on general principles of construction in the present case the period of two years within which the order was to be made by the assessing authority in respect of an order communicated to him on March 14, 1990 would start on March 15, 1990 and would end on March 14, 1992 and not earlier thereto. The orders made on March 14, 1992 are clearly within the expression 'within two years from the date of communication'.
13. In a Bench decision of the Andhra Pradesh High Court In re V.S. Metha AIR 1970 AP 234, the same view has been expressed. The question arose in the context of Section 106 of the Factories Act, 1948 which was couched in the like manner. Section 106 of the Factories Act provided that 'No Court shall take cognizance of any offence punishable under this Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector'. The Factory Inspector visited the Factory on August 29, 1966 and lodged a complaint on November 29, 1966. The situation was very much like the present case. Like question was raised before the court that complaint lodged on November 29, 1966 was not within the period of three months and therefore the court had no jurisdiction to take cognizance. The contention was that the word used in the statutes is 'of and not 'from'. The expression 'of three months cannot result in exclusion of first date. The court observed as under :
'Section 9(1) of the General Clauses Act provides that if in any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word 'from', and for the purpose of including the last in a series of days or any other period of time, to use the word 'to'. But in Section 106 of the Factories Act, the word 'from' has not been used. It is not stated that the complaint thereof is to be made within three months from the date on which the commission of the offence came to the knowledge of the Inspector, 'but within three months of the date'. In Stroud's Judicial Dictionary at page 1964 it is stated that 'of' is sometimes the equivalent of after, e.g., the word '21 days of the execution' means '21 days after the execution'.
We therefore, find that the term 'within three months of the date' in Section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of the Inspector'.'
14. The above interpretation of Andhra Pradesh High Court based on common law as well as on the provisions of the Limitation Act and the provisions of the General Clauses Act results in the exclusion of the day of the knowledge. No distinction was found between the use of word 'from' a period or 'of' a period. In the statute with which we are concerned also the expression used is 'within two years the communication of such order' which is to be read equivalent to within two years after a communication of such order, as explained in Stroud's Judicial Dictionary.
15. In re Messrs N.M. Hussein & Co. AIR 1953 Mad. 602 in connection with expression of period under Madras Buildings (Lease and Rent Control Act) (25 of 1949), a similar question arose for consideration. Section 3 of the Madras Act provided : Gives option to the Accommodation Controller, on receiving a notice from the owner of the house of a vacancy, 'to communicate to him within a week', a reply whether he intends to allot the house to a tenant or whether he is not going to exercise the option but allow the owner himself to occupy it. The question was whether communication from the Controller was received by this landlord within a week from his sending the notice to the controller. The communication was received by the controller on June 7, 1949, and the option letter of controller reached the landlord on June 14, 1949, the like question--whether period of one week ended on June 13, by including June 7, the day of receipt of communication or will end on June 14, by excluding the day of receipt of communication was answered by the court thus :
'Commonsense requires that 'within a week' should mean the exclusion of the date of the occurrence as otherwise we would be taking into consideration fractions of a day and calculate practically from the previous day. Then the spirit of this provision is that the Accommodation Controller must have a clear week for making up his mind whether he should allot the house to a tenant or he should not exercise his option.'
16. The question that came up before consideration of a Division Bench of Nagpur High Court in Miss Avi J. Cama v. Banwarilal Agarwal AIR 1953 Nagpur 81 was with respect to computation of period within which election petition could be filed under City of Nagpur Corporation Act, 1948. The expression used in the statute was at any time within 15 days from the date on which the election of a Councillor is notified.
17. The contention raised was that both days, viz., the date of notification of election and the date of filing the petition be included in computing the period of limitation. It was urged that expression 'within' fixes both the inward and outward limits of period. The contention was rejected. The court said :
''Within' in relation to time means 'in the limits of (a period of time), 'before the end of' and 'after not more than'.............. We are therefore of the opinion that the date of notification is used in the expression 'from the date on which the election of Councillor is notified under Section 16' only for the purpose of fixing the posterior limit arid not for the purpose of indicating an anterior limit. The words 'at any time' make it clear that a voter is entitled to make an application at any time after the cause of action accrues.'
18. These decisions fortify me in conclusion that in computing a period of limitation the period has to be computed, unless contrary is provided, by excluding the first day in a series of days with reference to which the period is to be computed and the period has to be computed in clear terms after the cause of action arises and by including the date on which the required act is done. The expression 'from', 'or or 'after' in that context has been used to indicate same thing. This is also clear from the two expression used in Section 10B(2). In fixing the period in respect of cases arising after commencement of provision the statute reads 'within two years of the date of communication' and in dealing with the period within which the proceedings are to be completed in respect of cases where cause for such computation had already arisen the expression used 'within one year from the date of commencement'. It cannot be envisaged that the Legislature intended two different principles for computation of period for the same purpose so as to exclude operation of Section 10 of the Rajasthan General Clauses Act.
19. As a result of the aforesaid discussion I am of the view that in computing period of limitation computing under Section 10-B the date on which relevant order is communicated to the assessing authority has to be excluded and the computing of two years must commence from the next date and the date on which the order is made is to be included viewed from any angle the order even if passed on March 14, 1992 in pursuance of the order of appellate authority communicated to the assessing authority on March 14, 1990 was within the limitation and that cannot be condemned as having been made beyond time is stillborn, having no life. Contention to that effect of the learned counsel for the respondent is rejected.
20. I am unable to hold that original assessment orders in the first instance itself were time-barred. As I have come to conclusion that the order even if made on March 14, 1992 is also within limitation I do not propose to examine the question whether order in first instance was in fact made on March 13, 1992 or March 14, 1992.
21. The orders made even on March 14, 1992 were within limitation from the date of communication of appellants order to the assessing authority. Thus question of holding the first order to be time-barred and giving no jurisdiction to proceed further in the matter also needs no further consideration.
22. The next question arising for consideration is that when the order dated March 13, 1992/March 14, 1992 was set aside under Section 10-C, should order dated March 14, 1992 be deemed to have been obliterated for all purposes and cannot at all be taken into consideration for the purpose of limitation under Section 10-B. The question answers itself on perusal of Section 10-B. Once an order complying with directions in appellate/ revisional order comes into existence within the period of limitation, it is not a dead order but is fully operative order, unless the assessee extricates himself from it by taking recourse to remedial measures. The remedy could have been taken many possible courses. It could have been taken by way of appeal before the appellate authority, or by way of revision before revisional authority, or by way of rectification proceeding, or could be by invoking extraordinary jurisdiction of this Court, or Supreme Court or by having recourse to application under Section 10-C for reopening of best judgment assessment. The fact remains that recourse to Section 10-C is to be directed to an operative order and to get rid of its effect. In the absence of the proceedings under Section 10-C the order dated March 13th/14th, 1992 was an operative order, unless it was set aside in accordance with law. The fact that application under Section 10-C succeeded, does not make it any less a case of compliance of the direction, in the first instance in pursuance of the order dated February 16, 1990, passed by the appellate authority for framing fresh assessment order. That order stood complied with when the order was made on 13th/14th March, 1992. It was an operative order which was within the limitation under Section 10-B. Thereafter, followed the proceeding taken by the assessee, for nullifying its effect in accordance with law in the manner provided under law. The order dated March 13th/14th, 1992, was equally subject to other provision of the Act of 1954, which included its susceptibility to remedial measures taken by the aggrieved party.
23. In this connection it may be pertinent to notice that clause (iv) of Section 10-B(1) which envisages that where a best judgment is reopened under Section 10-C thereafter, on reopening of completed assessment, fresh assessment has to be completed within the period prescribed therein, that is to say that 'not after the expiry of two years of receipt of application from dealer'. In the present case on a valid order having come into force on March 13th/14th, 1992, the assessee made an application under Section 10-C on June 19, 1992. When that application was allowed and the matter was reopened his case had to be considered under Section 10-B(l)(iv) and any order by the assessing officer ought to have been made, not. after the expiry of two years from June 19, 1992. Admittedly the assessment order after the proceeding came into existence under Section 10-C were made on January 15, 1994. Such order has to be considered on the yard-stick of Section 10-B(l)(iv) and if so considered are obviously within limitation.
24. The contention of the learned counsel for the petitioner that Section 10-B(l)(iv) and Section 10-B(2)(ii) are incongruous and cannot operate in same proceedings is also not sustainable inasmuch as both the provisions operate in different circumstances. While Section 10-B operates in respect of order which comes into existence in compliance of the direction contained in an order of appeal or revision on reference made to the High Court or any other competent court, the provision of Section 10-B(l)(iv), comes into operation where any authority makes an operative order on best judgment basis and after an operative order comes into existence the assessee seeks its reopening on showing sufficient cause for the same. In that event an operative order, which has come into existence in time, come to an end and a new field of provision governs the further proceedings. It is only when an operative order is set aside and new order is required to be made that Section 10-B(l)(iv) comes into force for the purpose of computation of period of limitation for the purpose of completion of proceeding thereafter. Therefore, in my opinion no conflict exists between two provisions which may warrant consideration of this, supposed conflict between two provisions. No conflict really exists.
25. Taking any other view will render 10-B(l)(iv) redundant. A proceeding under Section 10-C will come in existence only when an order already comes to exist anterior to it and that needs to be set aside by order under Section 10-C, the period for making such anterior order may be covered by any other provision that Section 10-B(1)(iv), either under Section 10-B(1) or 10-B(2). The effect of the contention raised by learned counsel will be that in all cases when an order under Section 10-C is made the order is stillborn and the fresh order thereafter would still be governed as if the order is being made in the first instance. If the original order is made as regular assessment or otherwise as reassessment it will not make any difference on the principle urged by learned counsel. The obvious consequence will be that in all cases the period will have to be computed as if proceedings under Section 10-C have not taken place. Not only this, in many case it will be impossible for any dealer to avail of the remedy of setting aside best judgment order under Section 10-C, even if the existence for exercise of such power is shown to exist, and he shall have to suffer such best judgment orders like in the prevent case, when the order is made on the last date of expiry of period prescribed for making such order. If setting aside of such order under Section 10-C results in that no fresh order can be made, it shall not only make provision of Section 10-B(1)(iv) redundant but very provision of making available a remedy to a dealer of setting aside a best judgment order and get an opportunity to explain his case unworkable. An interpretation which renders any part of statute redundant and also renders a provision wholly unworkable cannot be accepted.
26. The petitions, therefore succeed and are hereby allowed. The orders of the Rajasthan Tax Board under challenge are set aside.
27. The Rajasthan Tax Board shall now decide the appeals on merit in accordance with law by considering the order dated January 15, 1994 to be in limitation.