28.C.R.

SUPREME COURT REPORTS 967

within the Province. Tax in respect of the ea.le of 1962 fibre by the assessees under tne disputed transac- Ramalingam.,, Co. tions was therefore not exigible under the Madras v.

General Sales Tax Act.

Tiu Stat• of Madras

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 allowe.d.

M/S. BALLABHDAS AGARWAL

THE STATE OF BIHAR

(J.L. KAPUR, M. IIIDAYATULLAH and RAGHUBAR

DAYAL, JJ.)

Sales Tax-Appeal from order of Board of Revenue-No A 71peal from ordei of High Oourt.--Assesaet if can agitate the correctness of deci•ion of Board by Special Leave-Remedy open lo assessre wlien que .. tion asked for, not replied by the Board to Tligh Court-Appeal not maintainabk where breach of Rule of Natural. Justice or violation of principle of law not shown-Bihar Sales Tax Act, 1947 (Bihar 19 of 1947), ss. 6,24,25,28.

The appellant, a Railway contractor, having Refresh ment Rooms and Tea Stalls at various stations, was registered as a dealer under the Bihar Sales Tax Act, 1947. He being aggrieved bv 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.

Shah J.

J96B

F•b•UJJry 2.

M /s. Ballablu:los

..1garuaJ

"· ' TM- Stal< nf Bihar

'"""' J.

Held, that an as.cssee 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

Hi, h Cn11rt and were decided against him and against which no appeal wcs brought to the Supreme Court.

Held, further, that if any question on which the 1Wessee wanted a reference to the High Court was not referred, it was open to the a'5esscc to apply to the High Court for a reference under s, 28 of the Bihar Sales Tax Act, 1947.

H•'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 interferrnce direct with the orders of the Board of Revenue in an appti1l under Art. 136 of the Constitution,

Chimmonlal Ram,.hwarlal v, Commi.i&ioMr of lncomt Tar (Centralj, Calcutta AJ.R. 1960 S.C. 280 and Chandi PrtllJad Chokltaui v. Stak of Bi/tar, A, I.R. 1961 S, C. 1708, applied.

Crv1L APPELLATE JurusnrcTION: Civil Appt>al No. 3i!l of 1961.

Appeal by special le&ve from the Re11olution <lated April 21, 195~, of the Board of Revt-nut', Uihar Patna in Revision Case No. 706of1953.

S.K. Kapur and K.K. Jain, for the appellants.

D.P. Singh, R. K. Garg, M.K. Ramamurthi and S.C. AgaT'W<ll, for tho respondents.

1962. February, 2.-The Judgmtlnt of the Court was delivlred by

luPUR, J.-This appeal by Special Leave against the c.rder of tho Board of Revenue, Bihar, relates to the assessment for the year 1950,51 of SaleA

Tax of the appel111.nt under the Bihar Sales Tax Act, 194i (Act 19 of 1947), hereinafter 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 etatio118.

He was registered as a. dealer under the Aot 11nd had been carrying on busineBB for a fairly long timti. His case was that as it was difficult for him tu maintain accounts in regard to ea.tablee,

2 S.C.R. HUPREME COUB, T B, EPORT6 969

some of which were taxable and others were not, he made representation in HH4 to the Bihar G1wernment for same arrangement so that the diffi- 011lty in keeping diadrent set; s of accourit would be obviated. As a result of his representation the Bihar Government by a letter June 5, 1945, itF; reed that the appellant's taxable turnover in Bihar would be taken to be 66 2/3 % of the gross turnover d1iring the quarter ending December 31, I 944, and that this perc11ntage might be revised after December 31, 1945. As a result of this letter, the appellant did not keep separate accounts for taxable and non-tnxahln itums and for some of the quarters s11bs<>qnent to f.h1lse mentioned in the letter above referrerl to were also taxed according to the arrangement contained in that letter. For the period April I, 1950, to llfareh 31, 1951, the gross turnover was Rs. 11,16,270-11-0 and the appellant claime<l tha, t h!l he asses; r:d at 66 2/3 % of that amount ; but th0 Bales Tax Officer tiLxed him on the total gro~8 tumovor except for the usual rebate of 4% allowed in such cases.

He submitted th~, t in this turnover there were induded tax-free articles such as fresh milk, meat, fidh, green vegetables etc., 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, "here 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 ha<l beea acted upon and not reviewed, the Department waa legally entitled to tax petitioner on his gross

M/s. BaUabkdaa

Aga1wal ..

The State of B, har

Kqpur .1.

IHI

MI•· JMl/d/11/IU .41....i

•• n. Sloll ef Bilw

E•lfd'I.

turnover instead of 66 2/3 % of the same?

(ii) Whether Member, Board of Revenue, having held that "in the oircumstanoes the petitioner had prima f acie 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 asaessed in terms of the said arrangement?

(iii) Whether in the facts and circumstances

of the cs.se, it ia open to the Department to challenge the continuance of the arrangement arrived at between the State Government and the petitioner especi ally so when the State Government by its own acts or omissions misled the petitioner into maintaining his accounts in a manner prejudicial to the petitioner's

claim for deductions on account of sale of tax free goods during tho period ?

(iv) Whether in tho facts and circumstances of the case, the petitioner was entitled to tile 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. 194 7 ?

(v) Whether the Member Board of Revenue having held that meat and fish mentioned in N oti.fication 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 cooked otherwise were not covered in the terms of said notification?

(vi) Whether in terms of the Notification No. 5564 Ft. dated 30-3-49 cold meat and fish and boiled meat and fish could be distinguished from other preparllition of meat and fish ?

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 (i.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 dil:lhes 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 arch, 1949, issued under. section 6 of the Bihar Sales Act, 1947 with regard to the sales of the preparations of, meat and fish e.g., meat curry and fish curry served as separate dishes, or as part of the menu, 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

196B

M / s. Ballabhda1

Agarw41

Th4 Slak of Bihor

Kapur J.

JI f •. /lallabild OI

.igarwal

Tlw Stall oJ Bilw

KaprwJ,

972 SUPREME COURT REPORTS [1962). SUPP.

not appeared against the judgmt>nt and order of the B 1gh Court.

Thi" Court in M/s. Chi.mnonl<ill Ram.e.lnmrlnll v.

Com111i->sioner of Income-tax ( Centrnl) Clllc.utt11{ 1) held that in <"ll.Set whPre a reference is made to the High Court ancl tho appeal is brought only against the order of the Income Tax Appellate Tribunal thPn the 8upreme Court, if it intl'rferNl, would in fact be SC'tting aside the judgmont of the High Court without

there being an appeal to this Court, and that this Court cculd not bypafs the normal proreduro which

was to l.io adopted for tho purpose. In a later .Judgm••nt i11 Charuli Pra.sad Cho!.:hani v, Strife of

Bihar(') a Rimilnr view was taken that as the assessco had nut obtained 8pocial Leave in resywct. of any of the orders pasROd by the High Court un'.ler s. 2:; thos" onltJrs became final arid binding and the lB:!essce could not he allowed to bypass or o behind 1 hu or<l rs of tho High Court and such exorcise woulrl b" particularly inadvisable in a cas> whero tho result may be a conflict of the rlecision •Jf two courts of competent jurisdiction, which was e<Jntrary to the oliject of ss. 23, 24 all(! 25 of the Act. In this view of the law the appellant i~ not entitled to agitate tho corrcctnrsH or othcrwiso of the rlccision given by the Tribunal in rcganl to the questionH which wo agitflted before t.ho High Court and were decido<f against the appellant anr! ag:i.inst which no"

appeal h:J.11 been brought.

But he submit:i that there arc three other questions which also aride, and on which the sppell ant wanted a reference to Lhe High Cvurt. I.Jut whioh W!ll'tl not referred. It was open to tho appt•llant to apply to the High Court for u. reference under s. :!5. That the appellant did not do, and iL has not been shown that there was any such hreach

A.LR. 19"0 S. C. 280.

(2) A.l.R. 1961 S.C. 1708,

of the rules of natural justice or violation of any principle oflaw which would be a good ground for

011r 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 MABHYA PRADESH

(J.L. KAPUR, M. HIDAYATULLAH and RAGHUBAR

DAYAL, JJ.)

Criminal Tria/,-Offences committed in . Princely Bt, at, e prior to merger with Iwrlian Dominion-If and when the Indian Penal Code applicable to such offences-Madhya Bharat Ordinance No. 1of1948-Part B 8t, ates (Laws) Act, 1951 (~ qf

1951) •. 6.

The appellant had committed certain offences in 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 J ndian Penal Code, for the offences committed in the erstwhile State of Jhabua 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 iipplicable amongst other laws the Penal Code of India to the , State of Jhabua. After Jhabua State became part of the State of Madhy~ Bharat, the Rajpramukh by Ordinance No. I 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 peoality, forfeiture or pu.nishmeot incurred in respect of any offence committed against any law repealed.

Held, in 1948, when the offences were committed the ..

196%

i\ 1 / s. Ballabhdas

Agarwal

Tiu Slate of Bihar

Kapur J.

F.t; ruary 2