No 61 of 1950
Appeal from an order of the High Court of Patna dated 9th September 1948 Agarwala CJ and Meredith J in MJC No 5 of 1948
The appeal was originally filed as Federal Court Appeal No 71 of 1948 on a certificate granted by the Patna High Court under cl 31 of the Letters Patent of that High Court that the case was a fit one for appeal to the Federal Court
HP Sinha SC Sinha with him for the appellant
SK Mitra section L Chibber with him for the respondent
November 30
The judgment of the Court was deliv ered by FAzL ALl J
800 FAZL ALI J
This is an appeal from an order of the High Court of Judicature at Patna dated the 9th September 1948 declining to call upon the board of Revenue to state a case under section 21 3 of the Bihar Sales Tax Act 1944 Act VI of 1944 with reference to an assessment made under that Act
The Bihar Sales Tax Act was passed in 1944 and section 4 of the Act provides that every dealer whose gross turn over during the year immediately preceding the commencement of the Act exceeded Rs 5000 shall be liable to pay tax under the Act on sales effected after the date so notified
 It is not disputed that having regard to the definitions of dealer goods and sale under the Act the appellant who has been doing contract work on a fairly extensive scale for the Central Public Works Department and the East Indian Railway comes within the category of a dealer mentioned in section 4
Section 7 of the Act provides that no dealer shall while being liable under section 4 to pay tax under the Act carry on business as a dealer unless he has been registered under the Act and possesses a registration certificate
In pursuance of this provision the appellant filed an applica tion for registration on the 19th December 1944 and a certificate of registration was issued to him on the 21st December 1944
On the 8th October 1945 the Sales Tax Officer issued a notice to the appellant asking him to produce his accounts on 10th November 1945 and to show cause why in addition to the tax to be finally assessed on him a penalty not exceeding one and a half times the amount should not be imposed on him under section 10 5 of the Act
Section 10 5 under which the notice purported to have been issued runs thus If upon information which has come into his posses sion the Commissioner is satisfied that any dealer has been liable to pay tax under this Act in respect of any period and has nevertheless wilfully failed to apply for registra tion the Commissioner shall alter giving the dealer a reasonable opportunity of being heard assess to the best of his judgment the amount of tax if any due from the dealer in respect of such 801 period and all subsequent periods and the Commissioner may direct that the dealer shall pay by way of penalty in addition to the amount so assessed a sum not exceeding one and a half times that amount
 The appellant appeared before the Sales Tax Officer in response to this notice but obtained several adjournments till 16th March 1046 and ultimately failed to appear
Thereupon he was assessed by the Sales Tax Officer accord ing to the best of his judgment and was ordered to pay Rs 4526 13 0 as tax and a penalty amounting to one and a half times the amount assessed under section 10 5 of the Act
The appellant appealed to the Commissioner against the assessment and the penalty levied upon him but his appeal was dismissed on the 6th June 1946
He then filed a peti tion for revision to the Board of Revenue against the order of the Commissioner but it was dismissed on the 28th May 1947
He thereupon moved the Board of Revenue to refer to the High Court certain questions of law arising out of is order of the 28th May but Mr N Baksi a Member of the Board by his order of the 4th December 1947 rejected the petition with the following observations  No case for review of my predecessor s order made out
No reference necessary
 Section 21 of the Act provides that if the Board of Revenue refuses to make a reference to the High Court the applicant may apply to the High Court against such refusal and the High Court if it is not satisfied that such refusal was justified may require the Board of Revenue to state a case and refer it to the High Court
The section also provides that the High Court upon the hearing of any such case shall decide the question of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send to the Board of Revenue a copy of such judg ment under the seal of the Court   and the Board shall dispose of the case accordingly
 In accordance with this section the appellant made an application to the High Court praying that the Board of Revenue may be called upon to state a case and refer 802 it to the High Court
Dealing with this application the High Court pointed out that the Member of the Board had not been asked to review his predecessor s order but only to state a case and gave the following directions  The ease must therefore go back to the Board of Revenue for a case to be stated or for a proper order rejecting the application to be passed The Board then reheard the matter and rejected the application of the appellant and refused to state a case and refer it to the High Court
The appellant thereafter made an application to the High Court for requiring the Board of Revenue to state a case but this application was summarily rejected
He then applied to the High Court for leave to appeal to the Federal Court which the High Court granted following the decision of a Full Bench of the Lahore High Court in Feroze Shah Kaka Khd vs Income tax Commissioner punjab and NWFP Lahore The High Court pointed out in the order granting leave that in the appeal that was taken to the Privy Council in the Lahore case an objection had been raised as to the competency of the appeal but the Privy Council while dismissing the appeal on the merits had made the following observation  The objection is a serious one
Admittedly such an appeal as the present is not authorized by the Income tax Act itself
If open at all it must be justified under clause 9 Letters Patent of the Lahore High Court as being an appeal from a final judgment decree or order made in the exercise of original jurisdiction by a Division Bench of the High Court
And this present appeal was held by the Full Court to be so justified
Before the Board the question was not fully argued and their Lordships accordingly refrain from expressing any opinion whatever upon it 2
The High Court in granting leave to the appellant seems to have been influenced mainly by the fact that the view of the Lahore High Court had not been held by the Privy Council to be wrong
1 AIR 1981 Lah
2 AIR 1933 P C 198
803 At the commencement of the hearing of the appeal in this Court a preliminary objection was raised by the learned counsel for the respondent that this appeals was not compe tent and on hearing both the parties we are of the opin ion that the objection is wellfounded
In Sri Mahanth Harihar Gir vs Commissioner of Income tax Bihar and Orissa 1 it was held by a special Bench of the Patna High Court that no appeal lay to His Majesty in Council under clause 31 of the Letters Patent of the Patna High Court from an order of the High Court dismissing an application under section 66 3 of the Income tax Act a provision similar to section 21 of the Act before us to direct the Commissioner of Income tax to state a case
In that case the whole law on the subject has been clearly and exhaustively dealt with and it has been pointed out that the view taken by the Full Bench of the Lahore High Court in the case cited by the appellant was not supported by sever al other High Courts and that the Privy Council also when the matter came before it refrained from expressing any opinion as to its correctness
In our opinion the view expressed in the Patna case is correct
Clause 31 of the Letters Patent of the Patna High Court on the strength of which the appellant resists the prelimi nary objection raised by the respondent runs thus  And We do further ordain that any person or persons may appeal to Us Our heirs and successors in Our or Their Privy Council in any matter not being of criminal juris diction from any final judgment decree or order of the said High Court of Judicature at Patna made on appeal and from any final judgment decree on order made in the exercise of original jurisdiction by Judges of the said High Court or of any Division Court from which an appeal does not lie to the said High Court under the provisions contained in the 10th clause of these 1 AIR 1941 Prat
804 presents provided in either case that the sum or matter at issue is of the amount or value of not less than ten thousand rupees or that such judgmentdecree or order involves directly or indirectly some claim demand or question to or respecting property amounting to or of the value of not less than ten thousand rupees or from any other final judgment aecree or order made either on appeal or otherwise as aforesaid when the said High Court declares that the case is a fit one for appeal to Us   In order to attract the provisions of this clause it is necessary to show firstly that the order under appeal is a final order and secondly that it was passed in the exer cise of the original or appellate jurisdiction of the High Court
The second requirement clearly follows from the concluding part of the clause
It seems to us that the order appealed against in this case cannot be regarded as a final order because it does not of its own force bind or affect the rights of the parties
All that the High Court is required to do under section 21 of the Bihar Sales Tax Act is to decide the question of law raised and send a copy of its judgment to the Board of Revenue
The Board of Revenue then has to dispose of the case in the light of the judgment of the High Court
It is true that the Board s order is based on what is stated by the High Court to be the correct legal position but the fact remains that the order of the High Court standing by itself does not affect the rights of the parties and the final order in the matter is the order which is passed ultimately by the Board of Revenue
This question has been fully dealt with in Tata Iron and Steel Company vs Chief Revenue Authority Bombay1 where Lord Atkinson pointed out that the order made by the High Court was merely advisory and quoted the following observations of Lord Esher in In re Knight and the Tabernacle Permanent Building Society2 In the case of Ex parte County Council of Kent where a statute provided that a case might be stated 1 at 617 805 for the decision of the Court it was held that though the language might prima facie import that there has to be the equivalent of a judgment or order yet when the context was looked at it appeared that the jurisdiction of the Court appealed to was only consultative and that there was noth ing which amounted to a judgment or order
 It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction
It is not contended that the matter arose in the exercise of the appellate jurisdiction of the High Court because there was no appeal before it
Nor can the matter properly speaking be said to have arisen in the exercise of the original jurisdiction of the High Court as was held by the Judges of the Lahore High Court in the case to which reference was made because the proceeding did not commence in the High Court as all origi nal suits and proceedings should commence
But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act
The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate
In this view the appeal must be dismissed though on hearing the parties it appeared to us that the salestax authorities including the Commissioner and the Board of Revenue were in error in imposing a penalty upon the appel lant under section 10 15 of the Act which had no applica tion to his case inasmuch as he had been registered as required by section 7 of the Act
In the circumstances while dismissing the appeal we make no order as to costs
Appeal dismissed
Agent for the respondent
K Chatterjee


Summary:
No appeal lay to the Federal Court from an order of the Patna High Court dismissing an application under section 213of the Bihar Sales Tax Act 1944 to direct the Board of Reve nue Bihar to state a case and refer it to the High Court
Such an order is not a final order within the meaning of cl 31 of the Letters Patent of the Patna High Court inas much as an order of the High Court under section 21 3 is advisory and standing by itself does not bind or affect the rights of the parties though the ultimate order passed by the Board of Revenue may be based on the opinion expressed by the High Court
Nor is such an order passed by the High Court in the exercise either of its appellate or original jurisdiction within the meaning of the said clause
Sri Mahant Harihar Gir vs Commissioner of Income tax Bihar and Orissa AIR 1941 Pat 225 and Tata Iron and Steel Company vs Chief Revenue Authority Bombay 50 IA 212 applied
Feroze Shah Kaka Khel vs Income tax Commissioner Punjab AIR 1931 Lab
138disapproved