28.0.R. SUPREME COURT REPORTS 967 within the Province. Tax in respect of the sale of fibre by the assessees under tne disputed transactions was therefore not exigible under the Madras General Sales Tax Act.
The appeal is therefore allowed : the decree of the High Court is set aside, and the decree of the trial Court is restored with costs in this Court and the High Court.
Appeal allowed.
M/S. BALLABHDAS AGARWAL % THE STATE OF BIHAR
(J.L. Kapur, M. HipayatruLia and RAGHUBAR: Dayat, JJ.)
Sales Tax—Appeal from order of Board of Revenue—No Appeal from order of High Court—Assessee if can agitate the correctness of decision of Board by Special Leave—Remedy open to assessce when question asked for, not replied by the Board to High Court—Appeal not maintainable where breach of Rule of Natural Justice or violation of principle of law not shown—Bihar Sales Tax Act, 1947 (Bihar 19 of 1947), es. 6,24,25,28.
The appellant, a Railway contractor, having Refreshment Rooms and Tea Stalls at various stations, was registered as a dealer under the Bihar Sales Tax Act, 1947. He being aggrieved by the assessment for the year 1950-51 made by the Sales Tax Officer took the usual appeals to the Sales Tax Authorities and after the appeals were rejected he took a revision under s. 24 of the Act before the Board of, Revenue Bihar which was dismissed. He then applied under s. 25 of the Act to refer six questions of law to the High Court. The Board referred only one question to the High Court. The High Court after reframing the question answered it in the negative against him. Against the order of the Board of Revenue the appellant brought an appeal by special leave to the Supreme Court but he did not appeal against the judgment and order of the High Court.
Ramalingam & Co. Ve The State of Madras .
err eases
Shah J.
February 2.
-
M/s. Ballabhdas Agarwal
Ve “The State of Bihar
968 SUPREME COURT REPORTS (1962] SUPP.
Held, that an assessce is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which were agitated before the High Court and were decided against him and against which no appeal ws brought to the Supreme Court.
Held, further, that if any question on which the assessee wanted a reference to the High Court was not referred, it was open to the assessee to apply to the High Court for a reference under s. 28 of the Bihar Sales Tax Act, 1947.
He'd, also, that it has not been shown that there was any such breach of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution.
Chimmonlal Rameshwarlal v. Commiasioner of Income Tax (Central ;, Calcutta A.I.R. 1960 S.C. 280 and Chandi Prasad Chokhani v. State of Bihar, A.I.R. 1961 S.C. 1708, applied.
CrvIL APPELLATE JURISDICTION : Civil Appeal No. 379 of 1961.
Appeal by special leave from the Resolution dated April 21, 1954, of the Board of Revenue, Bihar Patna in Revision Case No. 706 of 1953.
S.K. Kapur and K.K. Jatn, for the appellants.
D.P. Singh, R. K. Garg, M.K. Ramamurthi and S.C. Agarwal, for the respondents.
1962. February, 2.—The Judgment of the Court was delivcred by
Kapor, J.—This appeal by Special Leave against the order of the Board of Revenue, Bihar, relates to the assessment for the year 1950-51 of Sales Tax of the appellant under the Bihar Sales Tax Act, 1947 (Act 19 of 1947), bereinafter called the ‘Act’.
The appellant was a railway caterer, who had Refreshment Rooms and Tea Stalls at various Railway Stations. He sold various kinds of eatables, cigarettes, betels, milk, fruits and tea at railway stations. He was registered as a dealer under the Aot und had been carrying on business for a fairly longtime. His case was that as it was difficult for him to maintain accounts in regard to eatables,
28.0.2. SUPREME COURT REPORTS 969 some of which were taxable and others were not, he made representation in 1944 to the Bihar Government for some arrangement so that the difficulty in keeping diferent sets of account would be obviated. As a result of his representation the Bihar Government by a letter June 5, 1945, agreed that the anpellant’s taxable turnover in Bihar would be taken to be 66 2/3 % of the gross turnover during the quarter ending December 31, 1944, and that this percentage might be revised after December 31, 1945. As a result of this letter, the appellant did not keep separate accounts for taxable and non-taxable items and for some of the quarters snbsequent to those mentioned in the letter. above referred to were also taxed according to the arrangement contained in that letter. For the period April 1, 1950, to March 31, 1951, the gross turnover was Rs. 11,16,270-11-0 and the appellant claimed that ho be assesscd at 66 2/3 % of that amount ; but the Sales Tax Officer taxed him on the total gross turnover except for the usual rebate of 4% allowed in such: cases. He submitted that in this turnover there were included tax-free articles such as fresh milk, meat, fish, green vegetables ctc., which were exempt from Sales tax under s. 6 of the Act. His submission was that the excess amount assessed was Rs. 11,416-15-0. Against this order he took the usual appeals to the Sales Tax Authorities and after the appeals were rejected, he took a revision under s. 24 of the Act before the Board of Revenue. Bihar, where also he was unsuccessful. Under s. 25 of the Act he applied for referring 6 questions of law to the High Court and _ those questions were as follows :—
(i) Whether upon the true construction of the agreement of 1945 between the State Government and the assessee which had been acted upon and not reviewed, the Department was legally entitled to tax petitioner on his gross
M/s. Ballabhdas Agarwal v. The State of Bikar
Kapur ..
M/s. Beliebhdas Agarwal * The Stats af Biker Koper J.
970 SUPREME COURT REPORTS [1962] SUPP.
(ii)
turnover instead of 662/3% of the same ?
Whether Member, Board of Revenue, having held that ‘‘in the circumstances the petitioner had prtma facie bona fide grounds for his belief that the arrangement which the Department had entered into, would continue” could legally hold that the petitioner was not entitled to be assessed in terme of the said arrangement ?
(iii) Whether in the facts and circumstances of the case, it is open to the Department to challenge the continuance of the arrangement arrived at between the State Government and the petitioner especially so when the State Government by its own acts or omissions misled the petitioner into maintaining his accounts in @ manner projudicial to the petitioner's claim for deductions on account of sale of tax freo goods during the period ?
(iv) Whether in the facts and circumstances
(v)
of the case, the petitioner was cntitled to the entire deduction on account of sale of meat and fish in terms of Notification No. 5564 Ft. dated 30-3-49 under section 6 of the Bihar Sales Act. 1947 ?
Whether the Member Board of Revenue having held that meat and fish montioned in Notification No. 5564 Ft. dated 30-3-49 under section 6 of the Bihar Sales Tax, Act. 1947, included boiled meat and fish and cold meat and fish, could legally hold that meat and fish couked otherwise were not covered in the terms of said notification ?
2 8.C.R. SUPREME COURT REPORTS 971
(vi) Whether in terms of the Notification 1968 No. 5564 Ft. dated 30-3-49 cold meat and Js. Baliabhdas fish and boiled meat and fish could be Agarwal distinguished from other preparation Of The State of Bihar meat and fish ? Kaur J
But the Board of Revenue referred the following question to the High Court under s. 6 :-—
“Whether the following forms of meat and fish are covered by Notification No. 5564 Ft., dated 30-3-49, issued under section 6 of the Bihar Sales Tax Act, 1947 ?
(i) Raw (é.e. uncooked in any way) meat or fish.
(ii) Boiled meat and fish, cooled or uncooled, meant for sale or consumption outside the petitioner’s premises.
(iii) Fish or meat, which has been boiled or cooked in some other way served as separate or part of a dish outside the petitioner’s premises as separate dishes or part of a menu.
(iv) Fish or meat, which has been boiled or cooked in some other way, served as separate dishes or part of a dish outside the petitioner’s premises.”
* The High Court reframed the question as follows :—
“Whether the petitioner was entitled to exemption under Notification No. 5564 Ft., dated 30th March, 1949, issued under. section 6 of the Bihar Sales Act, 1947 with regard to the sales of the preparations of meat and fish eg. meat curry and fish curry served as separate dishes, or as part of the ment, at lunch or dinner, at the petitioner’s premises or outside ?”
and answered it against the appellant. It is against the order of the Board of Revenue that the appellant has come in appeal by special leave but has
Mi;. Ralkabadas -igerwat
¥. The State of Bihar
972 SUPREME COURT REPORTS [1962]. SUPP.
not appeared against the judgment and order of the High Court.
This Court in M/s. Chi.nmonlall Rameshwarlall v. Commissioner of Income-tax (Central) Calcutta(') held that in cases where a reference is made to the High Court and the appeal is brought only against the order of the Income Tax Appellate Tribunal then the Supreme Court, if it interfered, would in fact be selling aside the judgment of the High Court without there being an appeal to this Court, and that this Court cculd not bypaes the normal procedure which was to be adopted for the purpose. In a later Judgment in Chandi Prasad Chokhani v. State of Bihar(?) a similar view wastaken that as the assessee had not obtained Special Leave in respect of any of the orders passed by the High Court under s. 25 those orders became final and binding and the assessee could not be allowed to bypass or go behind the ord rs of the High Court and such exercise would be particularly inadvisable in a cas? where tho result may be a conflict of the decision of two courts of competent jurisdiction, which was ¢ontrary tothe object of ss. 23,24 and 25 of the Act. In this view of the law the appcllant is not entitled to agitate the correctness or otherwise of the decision given by the Tribunal in regard to the questions which wo agitated beforo the High Court and were decided against the appellant and against which no® appeal has been brought.
But he submits that there are three other questions which also arise, and on which the appellant wanted a reference to the High Court but which were not referred. [t was open to the appellant to apply to the High Court fur 4 reference under 8.25. That the appellant did not do, and it has not been shown that there was any such breach
(1) ALR, 1960S. C. 280. (2) ALR, 1961 $.C. 1708,
EY sal
2.9.C.R. SUPREME COURT REPORTS 973 of the rules of natural justice or violation of any principle of law which would be a good ground for our interference direct with the orders of the Board of Revenue in an appeal under Art. 136 of the Constitution.
In our opinion the appeal is without force and is dismissed with costs.
Appeal dismissed,
THAKUR NARWAR SINGH v. THE STATE OF MADHYA PRADESH.
(J.L. Kapur, M. HipayaTuLiak and RaguuBar Dayat, JJ.)
Criminal Trial—Offences committed in Princely State prior to merger with Indian Dominion—If and when the Indian Penal Code applicable to such offences—Madhya Bharat Ordinance No. 1 of 1948—Part B States (Laws) Act, 1951 (3 of 1951) 8. 6.
The appellant had committed certain offencesin the State of Jhabua in 1948, when the Jhabua State was not a part of Dominion of India. He was tried in 1955 under the Indian Penal Code, for the offences committed in the erstwhile State of Jnabua in 1948. The question was whether the appellant could be tried in 1955 under the Indian Penal Code for offences committed in 1948 in the erstwhile State of Jhabusa.
The Raja of Jhabua State by a notification had made applicable amongst other laws the Penal Code of India to the State of Jhabua. After Jhabua State became part of the State of Madhya Bharat, the Rajpramukh by Ordinance No. 1 of 1948 continued the laws already in force in State of Jhabua. The Part B States (Laws) Act 1951 (3 of 1951) s.6 while repealing all the existing laws of the State inter alia saved the laws dealing with any penality, forfeiture or punishment incurred in respect of any offence committed against any law repealed.
Heid, in 1948, when the offences were committed the
M/s. Ballabhdes Agarwal
Vv The State of Bihar
February 2