In Reference Commercial Tax vs M/S Marico Industries Ltd
2021 Latest Caselaw 6595 MP

HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
                                TR.No.24/2021
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INDORE, Dated :21/10/2021
      Parties through their counsel.

      Shri Anand Prabhawalkar, learned counsel with Shri Madhav

Khandelwal for the respondent submits that this matter is similar to

T.R.No.18/2020 in which a detailed order is passed on 16.9.2021.

This Court has passed the following order in T.R.No.18/2020

on 16.9.2021:-

"Shri P.M Choudhary, learned senior counsel with Shri Anand Prabhawalkar, learned counsel for the dealer/opposite party.

Learned senior counsel at the outset placed reliance on the notification No.7652 of 14th October, 1952, which reads as under :-

"Notification No. 7652 of 14th October 1952- In exercise of the powers conferred by Article 225 of Constitution of India and Clause 27 of the Letters Patent the High Court of Judicature at Nagpur has made the following rules to regulate its proceedings under section 23 of the Madhya Pradesh Sales Tax Act, 1947 (Act No. XXI of 1947), These rules will come into force 1st December, 1952.

Following rules framed to regulate the procedure in regard to references and applications to the High Court under Section 23 of the Act :-

1. On receipt of a reference from the Tribunal under section 23 (1) of the Act, stating a case for the opinion of the High Court, it shall be registered as a Miscellaneous Civil Case.

2. The Tribunal shall, together with the reference submit the following documents :-

(i) a copy of the order of the Sales Tax Officer, Assistant Sales Tax Officer or Additional Sales tax Officer as the case may be.

                      (ii)      a copy of the order of the
                      Assistant     commissioner        or     the

Headquarters Assistant Commissioner.

                      (iii)       a copy of the order of the
                      commissioner,
                      and
                      (iv)      copies of such record as are

necessary for the consideration of the reference.

The Tribunal shall also submit four true and identical copies of the reference and its enclosures for being incorporated in the paper-book.

3. The Registrar shall admit the reference, and cause notice to be served on the parties intimating the date of hearing of the case.

4. An application under section 23 (2) (b) of the Act shall comply with the provisions of rules 2 and 3 of Chapter IV of the Rules of the High Court, and shall be registered as a HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE TR.No.24/2021

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Miscellaneous Civil case. It shall be accompanied by two copies (one of which shall be a certified copy) of the following documents :-

(i) the order of the Sales Tax Officer, Assistant Sales Tax Officer or the Additional Sales Tax Officer, as the case may be;

(ii) the order of the Assistant Commissioner or the Headquarters Assistant Commissioner;

(iii) the order of the commissioner, and

(iv) the order of the Tribunal refusing to refer the case and any other paper or document which the applicant considers necessary for the disposal of the application.

5. Such application shall set out in a concise form the material facts giving rise to the alleged question or questions of law that are required to be sated by the Tribunal.

6. The applicant shall, within three weeks of the date of the admission of the application, file four additional true and identical copies of the application and the documents mentioned in rule 4, for the preparation of paper-books for the Judges and the parties, unless the court otherwise directs.

7. Service of notice contemplated in these rules shall be deemed sufficient, if made on counsel for the party.

8. In references under section 23(1) and applications under section 23 (2) (b) of the Act, the commissioner of Sales tax or the dealer shall alone be shown as the "Applicant" or the "Opposite Party" as the case may be.

9. The Court hearing applications and/or references under section 23 of the Act shall be a Division Bench of two Judges, unless the Chief Justice orders that any application or reference shall be heard by a larger Bench.

10. After the judgment or the final order is passed, two copies of the judgment or order shall be sent to the Tribunal, Madhya Pradesh, Nagpur.

11. If the court orders the preparation of paper-book in office, the provisions of the rules in Chapter VIII of the High Court regarding preparation of paper books in Civil Cases shall apply mutatis Mutandis to these cases.

12. . In the rules, the expression "The Act" means the Madhya Pradesh Sales Tax Act (XXI of 1947) as amended from time to time."

(Emphasis Supplied) Learned senior counsel submits that as per the aforesaid rules,which came into being on 1st December, 1952, there was a method prescribed for the Registry to act in a particular manner after receiving the reference from the Tribunal.

The Registry was required to admit the reference and cause notice to the parties intimating the date of hearing of the case. The Department and other side were treated as "applicant" or "opposite party".

In the MP High Court Rules, 2008, there is no corresponding provision, and therefore, when the Registry of this Court directly receives references from the Tribunal, neither the applicant/department nor the opposite party/dealer are put to notice.It may happen that in absence thereof, when any technical defect is noticed by the Registry like non filling of 'application for hearing HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE TR.No.24/2021

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through Video Conferencing' or for curing any typographical error etc, the common conditional order will be mechanically passed and since none of the parties are put to notice and are made aware that such a reference is received and it is pregnant with any such defect, naturally the defects will not be cured by anybody and the reference will be dismissed for non-compliance of common conditional order.

Learned senior counsel suggests that some corresponding provision must be made in the High Court Rules of 2008 in consonance with the previous provision available in the notification no.7652 above.

Prima facie, we find substance in the contention of the learned senior counsel, and therefore, deem it proper to direct the Registry of this Court to examine the same and prepare a note in this regard. If their exists no such corresponding provision in High Court Rules, 2008, the said note alongwith this order be placed for consideration before Rule Making Committee.

If their exists any such provision in the High Court Rules, 2008, note be prepared and placed in this matter for perusal of this bench.

As prayed by learned senior counsel, list the matter alongwith VATA Nos.10/2012, 11/2012, 12/2012, 13/2012, 05/2016, 32/2017, 33/2017, 07/2018, 07/2011, 25/2019, TR Nos.07/2018, 09/2018, 19/2012 in the month of November, 2021."

List this matter in the first week of December,2021 along with

T.R.No.18/2020,T.R.No.25/2021,T.R.No.26/2021, T.R.No.29/2021,

T.R.No.30/2021,T.R.No.31/2021 and T.R.No.32/2021.

The Registry shall supply copy of T.R in each case to Shri

Anand Prabhawalkar, learned counsel within seven days.

           (SUJOY PAUL)                                    (PRANAY VERMA)
              JUDGE                                           JUDGE
das



  REENA
  PARTHO
  SARKAR
  2021.10.21
  02:31:38 -07'00'