Research › Browse › Judgment

Allahabad High Court · body

1966 DIGILAW 207 (ALL)

Commissioner v. Janki Prasad Juthan Prasad

1966-05-04

S.C.MAN CHANDA, V.BHARGAVA

body1966
JUDGMENT V. Bhargava, C.J. - By this application under Sec. 11 (4) of the Sales Tax Act a prayer is made that this Court may call for a statement of the case in respect of the following question:- Whether Sec. 8-A (4) of the U.P. Sales Tax Act is ultra vires and unconstitutional ? 2. The application has been made by the Commissioner of Sales Tax on the ground that the Judge Revisions in his decision held that Sec. 8-A (4) of the U.P. Sales Tax Act is ultra vires and unconstitutional. It appears to us that in view of the principle laid down in the latest pronouncement of the Supreme Court in K.S. Venkataraman & Co. (P.) Ltd. v. State of Madras, 60 ITR 112 no statement of the case can be called for by this Court on the question suggested on behalf of the Commissioner. In that case, the Supreme Court had occasion to consider the scope of the jurisdiction of the Income Tax Appellate Tribunal when deciding an appeal and the scope of the High Court when answering a reference under Sec. 66 of the Income Tax Act. The Supreme Court held that the Tribunal being a creature of the Income Tax Act itself, it had no jurisdiction to go into the vires of any of the provisions of the Income Tax Act. According to the Supreme Court, the jurisdiction of the Income Tax Appellate Tribunal was confined to the assessment of the income and the tax under the provisions of that Act. They could not ignore any source of income on the ground that the relevant provisions offend fundamental rights or were bad for legislative competence. On this basis we have to hold that in the present case the Judge Revision had no jurisdiction to decide any question relating to the vires of Sec. 8-A (4) of the Sales Tax Act. That also leads to the further conclusions that if a reference were to come up before this Court under the provisions of that Act, as is sought by the present application, this Court will also have no jurisdiction to decide the vires of Sec. 8-A (4) of the Sales Tax Act. That also leads to the further conclusions that if a reference were to come up before this Court under the provisions of that Act, as is sought by the present application, this Court will also have no jurisdiction to decide the vires of Sec. 8-A (4) of the Sales Tax Act. In that case the Supreme Court in very clear words held with reference to the power of the High Court in respect of reference under the Income Tax Act that :- "The High Court cannot possibly give any decision on the question of the vires of a provision." 3. This was held because the High Court had only an advisory jurisdiction under the Income Tax Act. Under the Sales Tax Act also, we have only advisory jurisdiction and consequently, we cannot give any decision on the question of vires of Sec. 8-A (4) of the Sales Tax Act. Being incompetent to give any decision on that question, it is clear that we cannot ask for a statement of the case in respect of the vires of Sec. 8-A (4) of the Sales Tax Act with the object of answering that question. In fact, if we were to ask for a statement of the case in respect of such a question we would only be committing an error of jurisdiction which the Judge Revision has already committed. The application, therefore, fails. 4. Learned counsel appearing for the Commissioner of Sales Tax made a request that, in the alternative, he may be permitted to amend the application and seek a direction from this Court calling upon the Judge Revisions to submit a statement of the case in respect of another question viz. whether the Judge (Revisions) had jurisdiction to decide the vires of Sec. 8-A(4) of the Sales Tax Act. As we have indicated above, such a question of law does clearly arise out of the revisional order of the Judge Revisions because the has exercised jurisdiction to go into vires of Sec. 8-A (4) of the Sales Tax Act and has held it to be ultra vires and unconstitutional. However, the power of this Court to call for a statement of the case is limited by the provisions of Sec. 11(4) of the Sales Tax Act and under that provision the Court can only call for a statement of the case subject to two limitations. However, the power of this Court to call for a statement of the case is limited by the provisions of Sec. 11(4) of the Sales Tax Act and under that provision the Court can only call for a statement of the case subject to two limitations. Once limitation is that it must be a question of law arising out of the revisional order of the Judge Revisions. In this case, this condition is satisfied. The second limitation is that the application before this Court should have required the Judge Revisions to refer that question to this Court under Sec. 11(2) of the sales Tax Act. In this case admittedly, no mention was made of such a question in the application made under Sec. 11(2) of the Sales Tax Act before the Judge Revisions on behalf of the Commissioner. Such limitation on our powers to call for a statement of the case also follows from the principles laid down by the Supreme Court in respect of the Income Tax, Act in Commissioner of Income Tax, Bombay v. Scindia Steam Navigation Co. Ltd., 42 I.T.R. 589. The Supreme Court there held that the power of the Court to issue a direction to the Tribunal under Sec. 66(2) of the Income Tax Act is in the mature of a mandamus and it is well settled that no mandamus will be issued unless the applicant had made a distinct demand on the appropriate authorities for the very reliefs which he seeks to enforce by mandamus and that had been refused. It was further held that:- "Thus, the power of the court to direct a reference under Sec. 66(2) is subject to two limitations - the question must be one which the Tribunal was bound to refer under Sec. 66(1) and the applicant must have required the Tribunal to refer it." On that principle we can ask the Judge Revisions to state the case only in respect of those questions in regard to which the Judge Revisions was required to state the case by the Commissioner in the application under Sec. 11 (2) of the Sales Tax, Act. The question about the jurisdiction of the Judge (Revisions) to decide about the vires of Sec. 8-A(4) of the Act was not one of the questions raised in the application under Sec. 11(2) and, consequently, we cannot call for a statement of the case in respect of such a question even if we were to permit an amendment of the application before us as prayed by learned counsel for the applicant. In the circumstances the application, has no force and is rejected.