Gujarat High Court
State Of Gujarat vs Ajay Trading Company on 12 June, 1991
JUDGMENT A.P. Ravani, J.
1. This reference is at the instance of the Revenue and it relates to the assessment period commencing from April 1, 1974 to March 31, 1975. The assessee is engaged in the business of selling sweets, biscuits, toffees, chocolates, peppermints, etc. The assessee is registered as dealer under the appropriate pervasions of the Gujarat Sales Tax Act, 1969.
2. During the assessment period the assessee effected sales of sweets, toffees, etc., worth Rs. 23,18,223 and calculated the tax on those sales as taxable under entry 50 of Schedule II, Part A to the Gujarat Sales Tax Act, 1969. The Sales Tax Officer calculated the tax on these sales at the rate of 8 per cent although the rate prescribed was 7 per cent. After the Sales Tax Officer passed order dated August 2, 1976, the assessee filed application for rectification of the mistake. The Sales Tax Officer rejected the application on the ground that rectification of the mistake was a question of law and not of facts. Therefore it did not fall within the scope of section 72 of the Act. The assessee preferred appeal before the Assistant Commissioner, who also confirmed the decision of the Sales Tax Officer. The assessee preferred second appeal before the Tribunal. The Tribunal, as per its judgment and order dated January 22, 1981, held that it was a case of mistake of fact apparent on the record and the same was required to be rectified. The Tribunal also negatived the contention of the Revenue that the articles of sales were covered by residuary entry No. 13 of Schedule III of the Act.
3. The Revenue preferred application for making reference to this Court. The Tribunal has referred the following question to this Court :
"Whether, on the facts and in the circumstance of the case, the Tribunal was correct in law in holding that sales of sweets and toffees effected by M/s. Ajay Trading Company attracted levy of tax under entry 50 in Schedule II, Part A to the Act and not under entry 13 in Schedule III to the Gujarat Sales Tax Act, 1969 ?"
4. Entry 50 of Schedule II, Part A as it stood at the relevant time read as follows :
------------------------------------------------------------------------
Sl. No. Description of goods Rate of sales Rate of
tax purchase tax
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50 Sweets and sweetmeats Seven paise Seven paise
including shrikhand, basudi in the rupee in the rupee
and Dudhpak except when sold
in sealed containers of
weight not exceeding five
kilograms in each container.
In our opinion the Tribunal has arrived at the correct conclusion. On the face of it, is a mistake of fact. Instead of levying tax at the rat of 7 per cent which is the prescribed rate, by mistake or inadvertence, the Sales Tax Officer has ordered to levy tax at the rate of 8 per cent. Even the Sales Tax Officer did not advance the reason that the goods in question were covered by residuary item. It appears that for the first time the question was sought to be raised before the Tribunal. The Tribunal has rightly rejected this contention. When an article is specifically mentioned in an entry, residuary entry will not be applicable. We don't see any merit in this contention and it is being noted for the purposes of rejecting only. In our opinion the Tribunal has decided in the question rightly.
5. For the aforesaid reasons we answer the question in affirmative, in favour of the assessee and against the Revenue. The reference is answered accordingly with no order as to costs.
6. Reference answered in the affirmative.