Baldev Raj Kabaria Vs. State of Punjab - Court Judgment

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.rajendra nath mittal, j.1. in compliance with the directions of this court in sales tax case no. 9 of 1968 dated 16th july, 1973, the sales tax tribunal referred the following question of law under section 22(3) of the punjab general sales tax act, 1948 (hereinafter referred to as the act), for the opinion of this court:whether, on the facts and in the circumstances of this case, the assessing authority had any power under sub-section (3) of section 14 of the act, to record statement of the assessee to find out if he is liable to be assessed or not ?2. briefly, the facts as given in the reference order are as follows:the petitioner, shri baldev raj kabaria, an unregistered dealer, is carrying on the business of sales and purchases of wool and yarn waste. the relevant assessment year is 1963-64 and the period for which the assessment has been made is from 2nd march, 1964, to 31st march, 1964. the excise and taxation officer made a surprise visit to the shop of the petitioner on 17th november, 1964, and found that he was an illiterate person and did not maintain the account books. he recorded his statement and got that thumb-marked from him. he again visited the shop of the petitioner on 18th november, 1964, recorded his statement second time and got that also thumb-marked. on the basis of the said statement he, vide order dated 25th january, 1965, estimated the average daily sales of the petitioner at rs. 200 and held him liable to pay rs. 300 as sales tax for the period from 2nd march, 1964, to 31st march, 1964, and imposed on him a penalty of rs. 10 under section 11(6) of the act for not getting himself registered.3. the petitioner went up in appeal before the deputy excise and taxation commissioner, patiala, who vide order dated 7th december, 1965, remanded the case for fresh decision by the assessing authority observing that the latter had not made a proper inquiry.4. the assessing authority again recorded the statements of the petitioner on 25th july, 1966, 15th october, 1966, and 1st september, 1967, and held that the inquiries revealed that he was carrying on the business of yarn waste on a large scale in his shop in mouch pura. in addition he had one godown each at khud mohalla and ferozepore road and two godowns in naya mohalla. the stock of the petitioner was not less than rs. 15,000. he further held that on further inquiries it was disclosed that the petitioner's business was quite flourishing and the sales were rs. 200 per day. consequently he assessed the sales at rs. 5,000 for the period from 2nd march, 1964, to 31st march, 1964, and assessed him to tax at rs. 300. he also imposed a penalty of rs. 50 upon him under section 11(6) of the act.5. the petitioner feeling aggrieved from the order of the assessing authority went up in appeal before the assistant excise and taxation commissioner, who dismissed the same on 1st september, 1967. thereafter, he filed a revision petition before the financial commissioner. it was transferred to the tribunal for disposal as an appeal by virtue of section 21b, which was also dismissed on 23rd february, 1968. 6. the petitioner then moved an application under section 22(1) of the act for reference of the above question to this court which was declined. feeling aggrieved he filed a petition under section 22(2)(b) before this court for directing the tribunal to refer the abovesaid question for the opinion of the court. it is in these circumstances that the question has been referred for the opinion of this court.7. section 14 deals with production and inspection of accounts and documents. sub-section (1) says that the assessing authority can require a dealer to produce before him any accounts or documents or to furnish any information relating to the stock of goods of, or goods bought, sold or delivered by the dealer and in case the latter fails to do so, the assessing authority can draw such inference as it deems fit against him. under sub-section (2) the assessing authority can inspect all accounts, registers and other documents relating to the stock of goods of any dealer and can countersign accounts, registers and documents. sub-section (2a) authorises the commissioner to seize accounts, registers or documents of a dealer and to retain the same so long as may be necessary for examination thereof or for a prosecution. sub-section (3) authorises the assessing authority for the purposes of sub-section (2) and the commissioner for the purposes of sub-section (2a), to enter any place of business or warehouse of any dealer. sub-section (3) reads as follows :for the purposes of sub-section (2), the assessing authority and for the purposes of sub-section (2a), the commissioner or any person authorised by him under section 15 may enter any place of business or warehouse of any dealer: provided that these powers shall not be exercisable by an officer below the rank of an assistant excise and taxation officer.8. a bare perusal of the sub-section shows that the assessing authority has not been given any power to record the statement of a dealer to find out if he was liable to be assessed or not. in fact the assessing authority cannot record the statement of a dealer under any of the sub-sections of section 14. therefore, the action of the assessing authority in recording the statements of the petitioner and getting the same thumb-marked from him is not in consonance with sub-section (3).9. for the aforesaid reasons, we answer the question in the negative, that is, in favour of the assessee and against the revenue. no order as to costs.