TaxTMI 
TaxTMI 
1953 (8) TMI 17
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....he year 1123; (b) Whether, in the circumstances of the case, the respondent was right in not considering the readiness and the willingness of the peti- tioner to obtain the licence for the year 1123, and whether his findings are vitiated by the circumstance that he entirely ignored the aspect that the passing out of a year does not take away the jurisdiction to receive the fees and issue a licence with retrospective effect; (c) Whether, in the circumstances of the case, the respondent was right in holding that the petitioner is entitled to get the benefit of the exemption on the sales of bullion and specie only if he has obtained a licence under the rules; and (b) Whether, in the circumstances of the case, the respondent was right in holding that the plea of ignorance of the relevant provisions of the Act cannot be accepted as a valid excuse. 2.. The facts are these. The assessment with reference to which the two orders of revision were passed related to the years 1123 and 1124. The rules framed by Government under Section 38 of the said Act, XV of 1121, were amended on 4th September, 1947, corresponding to 19th Chingom, 1123. Rule 9 as amended provides, under the heading 'Licen....
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....t may be due to the intention of the framers of the rules to constitute the Sales Tax Officer the proper or only person to receive all applications for licence whether presented within 30 days of the commencement of an year or later in that year or in any other year, irrespective of his power to deal with them. The rules do not indicate the authority to determine the question, whether the case is a fit one for the grant of a licence with retrospective effect or not. It appears to us that this lacuna deserves to be rectified by the legislature. 3.. In this case, however, the officer forwarded the application made by the petitioner to the Commissioner who passed orders on 1st August, 1950, rejecting licences for the years 1123 and 1124 and granting one for the year 1125 as in his view the retrospective effect with which a licence could be issued under the rules could not go further back than the year in which the application is made. We do not feel called upon to decide one way or the other as regards the correctness of the Com- missioner's conclusion upon this point. It is sufficient to say that the Com- missioner has jurisdiction to decide the question and he did decide it again....
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.... that a part of the capital of the bullion business had been diverted to money-lending and in view of that diversion and consequent reduction in the turnover, the assessment was reduced to a certain extent in 1124 which was the only year in which there was the diversion of capital. On this fact being revealed, learned counsel for the petitioner withdrew his prayer as regards question (a). Questions (b) and (c) really form but one question and relate to the exemption claimed by the petitioner in respect of his bullion business. This claim was rejected on the ground that he was not a licensee. Learned counsel for the petitioner says that though exemption from tax could be claimed only by a licensee, in this case the application for licence and the proceedings for assessment should be con- sidered as forming part of the same matter as the authority to assess and to grant the licence is the same. We are unable to accept this contention. The power to issue a licence is different from the power to levy a tax. The coincidence of both the powers in the same officer or the simultaneity of their exercise does not create a coalescence of the two or constitute the grant or refusal of a licence....
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.... require the Commissioner of Sales Tax to refer to the High Court any question of law arising out of such order, and the Commissioner of Sales Tax shall, within sixty days of the receipt of such application, draw up a statement of the case and refer it with his own opinion of the question of law to the High Court: "Provided that a reference shall lie from an order under Section 18 only on a question of law arising out of that order itself, and not on a question of law arising out of a previous order revised by the order under Section 18. "Provided further that, if in exercise of his power of revision under Section 18, the Commissioner of Sales Tax decides the question, or if the (1) [1951] S.C.R. 1008; 19 I.T.R. 191. Commissioner of Sales Tax rejects the application on the ground that it is time-barred or otherwise incompetent, or if, in exercise of his powers under sub-section (2), the Commissioner of Sales Tax refuses to state the case, the assessee may within thirty days from the date on which he receives notice of the order passed by the Commissioner of Sales Tax withdraw his application, and if he does so, the fee paid shall be refunded." This is an order passed by the C....