ittigi Veerabhadrappa Vs. Commissioner of Commercial Taxes in Mysore, Bangalore - Court Judgment

Excerpt:
- sections 16 (1) (c) & 20 :[k.ramanna,j] suit for specific performance of agreement to sell - defendant who failed to execute sale deed alleged that plaintiff was not willing to perform his part of contract time was not essence of contract plaintiff was financially well off to pay balance sale consideration held, balance of convenience is in his favour. failure on the part of defendant to issue notice rescinding contract showed that it was he who evaded execution of sale deed. increase in market value or delay on part of plaintiff to sue is no ground to refuse specific performance. section 20: [k.ramanna,j] appeal against decree for specific performance question regarding limitation raised for first time in appeal held, the same includes both question of fact and law and the.....orderdas gupta, c.j. 1. the only question raised in this petition is whether or not it was competent for the board of revenue to transfer proceedings pending before it for restoration of review petition, which was dismissed for default, to the commissioner of commercial taxes. 2. the matter arises in this way :- the petitioner before us was subjected to an assessment order made for the year 1953-54 by the sales tax officer, bellary. against that order he filed an appeal to the deputy commissioner of commercial taxes. that appeal failed. he thereupon filed a revision petition to the mysore board of revenue. that petition was filed in the year 1956. on 12th february, 1957, the said petition was dismissed. thereafter he filed a review petition before the said board of revenue. the said.....

Judgment:
ORDER

Das Gupta, C.J.

1. The only question raised in this petition is whether or not it was competent for the Board of Revenue to transfer proceedings pending before it for restoration of review petition, which was dismissed for default, to the Commissioner of Commercial Taxes.

2. The matter arises in this way :-

The petitioner before us was subjected to an assessment order made for the year 1953-54 by the Sales Tax Officer, Bellary. Against that order he filed an appeal to the Deputy Commissioner of Commercial Taxes. That appeal failed. He thereupon filed a revision petition to the Mysore Board of Revenue. That petition was filed in the year 1956. On 12th February, 1957, the said petition was dismissed. Thereafter he filed a review petition before the said Board of Revenue. The said petition for review was dismissed on 23rd August, 1957, for default. The petitioner thereupon filed a petition for restoration of his review petition. This restoration application was filed on 14th September, 1957. After the said application was filed two Acts came into operation, being Mysore Act 25 of 1957 and Mysore Act 24 of 1957. The Board of Revenue on 17th October, 1957, made an order transferring the said application, which was then pending before it, to the Commissioner of Commercial Taxes. The Board in making that order proceeded on the view that the jurisdiction to deal with such application, having regard to the provisions of Act 25 of 1957, vested in the Commissioner of Commercial Taxes. The Commissioner of Commercial Taxes thereafter made an order dismissing the said application for restoration. It is against that order that the present application has been filed to this Court.

3. It was urged before us by the learned Advocate appearing for the petitioner that the Board of Revenue could not transfer the said petition for disposal to the Commissioner of Commercial Taxes and the Commissioner of Commercial Taxes had no jurisdiction to deal with the same. In order to understand this contention it would be necessary to refer to the several Acts which had come into existence beginning from the Mysore Sales Tax Act, 1948, being Act No. 46 of 1948. Under the said Act 46 of 1948 the revisional powers against an order made by the Deputy Commissioner of Sales Tax lay to the Government and the Government could delegate its power to the Commissioner of Sales Tax. The Government in fact delegated its power to the said officer. Then came the Mysore Board of Revenue Act, 1955, being Act No. 7 of 1955. Section 4 of this Act inter alia provided that the Board shall exercise all appellate or revisional powers exercisable by the Commissioner of Sales Tax by or under any enactment or regulation or notification, order, scheme, rule, form or bye-law, under such enactment or regulation and for this purpose, all references in any such enactment, regulation, notification, order, scheme, rule, form or bye-law to the Commissioner of Sales Tax shall be construed as references to the Board. The result of this provision was that the Board of Revenue became vested with the revisional powers exercisable under the Mysore Sales Tax Act of 1948.

4. The next Act to be taken into consideration is the Mysore Sales Tax Act of 1955 being Act No. 17 of 1955. By this Act an Appellate Tribunal was constituted and the power of appeal under the Mysore Sales Tax Act vested in such Appellate Tribunal. After the States Reorganisation Act of 1956 had come into existence and by virtue of adaptation orders passed under it the Mysore Board of Revenue was constituted as the authority corresponding to the Sales Tax Appellate Tribunal. The result of that adaptation order was that the appellate powers exercisable under the Mysore Sales Tax Act, 1948, became vested in the Mysore Board of Revenue. Then came the two Act with which we are more closely concerned in this petition. They are Act No. 24 of 1957 and Act No. 25 of 1957.

5. Act No. 25 of 1957 although put into the statute book at a later stage had really come into existence at a date earlier than Act No. 24 of 1957. Act No. 25 of 1957 came into force on 1st October, 1957, and Act No. 24 of 1957 came into force in December, 1957. Section 40 of Act No. 25 of 1957 repealed amongst others Act No. 46 of 1948. There was, however, a proviso to sub-section (1) of the said section which provided that such repeal shall not affect the previous operation of the said enactments or anything duly done or suffered thereunder; or any right, privilege, obligation or liability acquired, accrued or incurred under the said enactments; or any penalty, forfeiture or punishment incurred in respect of any offence committed against the said enactments; or any investigation, legal proceeding or remedy in respect of any such right, privilege etc. The said proviso further laid down that legal proceedings pending at the date when the said Act came into force will be continued as if the said Act was not passed. Sub-section (2) of the said laid down that notwithstanding anything contained in sub-section (1) for the purpose of giving effect to the preceding proviso of the said sub-section the State Government may, by notification, make such provision as appears to it to be necessary or expedient amongst others for specifying the authority, officer or person who shall be competent to exercise such functions exercisable under any of the repealed enactments or any rules, notifications, or orders issued thereunder as may be mentioned in the said notification.

6. The material sections of Act 24 of 1957 are sections 4 and 11. Section 4 inter alia provides that all appellate and revisional powers vested in or exercisable by the Mysore Board of Revenue under the Mysore Board of Revenue Act, 1955, as amended by this Act, shall stand transferred to and be exercisable by the Tribunal constituted by this Act, viz., the Mysore Revenue Appellate Tribunal. Section 11 provides as follows :-

'As from the date of commencement of this Act the Mysore Board of Revenue shall cases to function and all proceedings pending before the said Board shall on that date stand transferred to the Tribunal and thereafter the provisions of this Act shall be applicable to such proceedings as if such proceedings had commenced before the Tribunal.'

7. The only other section which I need refer to is section 12 of Act 24 of 1957. It provides that in the Mysore Board of Revenue Act, 1955, sub-section (1) of section 4, sections 6, 11 and 12 and the Schedule shall be omitted.

8. The learned Advocate for the petitioner before us contended, on the basis of the provisions of these Acts, particularly on the basis of the aforementioned provisions of Acts 24 and 25 of 1957, that the Board of Revenue had no jurisdiction to transfer the application, which was pending before it for restoration of the review petition filed by the petitioner, to the Commissioner of Commercial Taxes and the latter officer had also no jurisdiction to deal with the same. The learned Advocate contended that in view of the provisions of section 11 of Act 24 of 1957 the matter which were pending before the Mysore Board of Revenue stood transferred to the Tribunal constituted by the said Act and has to be dealt with by the said Tribunal.

9. As against the said contention of the learned Advocate for the petitioner, the learned Government Pleader urged before us that although by virtue of the provisions of sub-section (1) of section 40 of Act No. 25 of 1957, the Mysore Sales Tax Act, 1948, being Act No. 46 of 1948, was repealed, the proviso to the said section kept alive the legal proceedings which had been pending at the date when the said Act came into operation. He further contended that by virtue of clause (b) of sub-section (2) of section 40 of the said Act the Government can specify the authority which has to deal with the said proceedings and in this case the Government has specified the Commissioner of Commercial Taxes as the authority who would be competent to deal with the said proceedings. The learned Advocate also contended that the Board of Revenue rightly transferred the proceedings which were pending before it to the said Commissioner of Commercial Taxes.

10. I find it difficult to accept the contention of the learned Government Pleader on this point. In my opinion, the right which is saved under the proviso to sub-section (1) of section 40 is the right which is conferred by the Mysore Sale Tax Act, 1948. Even assuming that the said right would include a right to proceed with an appeal or application for revision, it would not include a right to proceed with an application, as at present, for restoration of a review petition. The right to apply for a review is not conferred by the Mysore Sales Tax Act of 1948. The right which is conferred by the said Act is the right of appeal and the right of revision. Therefore, even if the proviso to sub-section (1) of section 40 includes a right to proceed with the legal proceedings contemplated by the Mysore Sales Tax Act, 1948, it would not include the right to proceed with a review application, nor would it include the right to proceed with an application for restoration of a review petition which had been dismissed for default. For that purpose we have to turn to the provisions of the Mysore Board of Revenue Act. The power to entertain an application for review and to make an order for review is conferred by section 7 of the said Act. That section provides that the Board may, either on its own motion, or on the application of any party affected, review any order passed by itself and pass such orders in reference thereto as it deems necessary. It, therefore, appears that the power to review is not conferred by any provision of the Mysore Sales Tax Act, 1948, but is conferred upon the Board of Revenue by the Board of Revenue Act itself. That Act was not repealed by section 40 of Act 25 of 1957. The result is that the said power remained intact and was not taken away at the date when Act No. 25 of 1957 came into operation. Section 40, therefore, has no application to a case as at present where there is either a pending application for review before the Board of Revenue, or a pending application for restoration of an application for review which was dismissed for default. The Board of Revenue still retained the power at the date when Mysore Act No. 25 of 1957 came into force to deal with such applications.

11. The subsequent Act being Act No. 24 of 1957, however, made a change in the powers of the Board in this respect. I have referred to section 11 of Act No. 24 of 1957 and I have already pointed out that under the said section as from the date of commencement of the said Act the Mysore Board of Revenue shall cease to function and all proceedings pending before the Board on that date shall stand transferred to the Tribunal constituted under the said Act. It is, therefore, clear that the present matter which was pending before the Mysore Board of Revenue stood transferred from the date of commencement of Act No. 24 of 1957 to the Mysore Revenue Appellate Tribunal. If that is so, then the Board of Revenue could not transfer the said proceedings to the Commissioner of Commercial Taxes and the Commissioner of Commercial Taxes had also no jurisdiction to deal with the same. This being the position, the petitioner is entitled to succeed in his present application because the order transferring the present proceedings before it to the Commissioner of Commercial Taxes was wrong and the Commissioner had no jurisdiction to deal with the same. I, however, express no opinion on the question as to whether or not, in view of the provisions of sections 4 and 12 of Act 24 of 1957, the Mysore Revenue Appellate, Tribunal, although the matter stands transferred to it by virtue of the provisions of section 11 of Act 24 of 1957, has jurisdiction to deal with the same. This question is left open and has to be agitated before and decided by the said Tribunal.

12. The result, therefore, is that this petition succeeds and the order of the Board of Revenue transferring the application for restoration of the review petition to the Commissioner of Commercial Taxes is quashed and the order made by the Commissioner of Commercial Taxes dated 24th January, 1958, whereby he refused to interfere with the order of the Revenue Board, which had dismissed the revision petition, is also quashed. The parties will bear their own costs of this petition.

Somnath Iyer, J.

13. I agree.

14. Petition allowed.