Allahabad High Court
Krishna Rice And Oil Mills vs Commissioner Of Sales Tax on 10 February, 1986
Equivalent citations: [1987]67STC195(ALL)
JUDGMENT Anshuman Singh, J.
1. This revision under Section 11(1) of the U. P. Sales Tax Act (hereinafter referred to as the Act) has been preferred by the assessee against the judgment dated 29th October, 1986, passed by the Sales Tax Tribunal, Bareilly Bench II, Bareilly, dismissing the appeal of the assessee against the order dated 3rd September, 1984, passed by the Assistant Commissioner (Judicial) under Section 22 of the Act relating to assessment year 1975-76.
2. The assessee was carrying on business in foodgrains. The original assessment order was passed by the assessing authority on 11th March, 1980. The applicant feeling aggrieved by the assessment order preferred an appeal before the Assistant Commissioner (Judicial) who by his order dated 3rd February, 1981, allowed the appeal in part and reduced the turnover. The Commissioner of Sales Tax feeling aggrieved preferred a second appeal under Section 10 of the Act before the Tribunal which by an order dated 23rd October, 1982, affirmed the findings of the Assistant Commissioner (Judicial) and dismissed the appeal. After the order of the Tribunal it appears that the Commissioner of Sales Tax felt that though the Assistant Commissioner (Judicial) by his order dated 3rd February, 1981, had fixed the turnover of the assessee at more than Rs. 2 lacs per annum but he did not impose any surcharge as contemplated under the Act and consequently he moved an application purporting to be under Section 22 of the Act before the Assistant Commissioner (Judicial) for rectification of his order dated 3rd February, 1981. The said application was resisted by the assessee firstly on the ground that it was barred by time and, secondly, that since the order passed by the Assistant Commissioner (Judicial) has merged in the order of the Tribunal, rectification could not be made by the Assistant Commissioner (Judicial). The Assistant Commissioner (Judicial) rejected both the submissions and allowed the application of the Revenue by an order dated 3rd September, 1984. The applicant-assessee feeling dissatisfied against the said order preferred a second appeal before the Tribunal which dismissed the same by the impugned order.
3. I have heard Sri Prakash Krishna, learned counsel for the assessee, and the Standing Counsel appearing for the Commissioner of Sales Tax. Learned counsel for the assessee has not been able to substantiate his first submission that the application was barred by time. With regard to the second submission it has been strenuously urged that since the order passed by the Assistant Commissioner (Judicial) stood merged in the order passed by the Tribunal, the Assistant Commissioner (Judicial) had no jurisdiction to rectify his mistake in the order even if clerical or arithmetical under Section 22 of the Act. Before deciding the controversy it would be necessary to refer to the relevant portion of Section 22 of the Act which reads as under :
22. Rectification of mistakes.-(1) The assessing, appellate or revising authority or the Tribunal may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in its order, apparent on the record within three years from the date of the order sought to be rectified:
Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period : ...
4. From a perusal of the aforesaid provision it is evident that the legislature has conferred power on the assessing, appellate or revising authority or the Tribunal to rectify the mistake in their orders apparent on the record within three years from the date of the order sought to be rectified. In this case since the order dated 3rd February, 1981, passed by the Assistant Commissioner (Judicial) stood merged in the order of the Tribunal dated 23rd October, 1982 which confirmed the order of the Assistant Commissioner (Judicial), in fact in the eye of law there existed no order of the Assistant Commissioner (Judicial) which could be rectified by him. It has further been urged on behalf of the assessee that the only courses open to the Revenue were either to have filed a revision under Section 11 of the Act in this Court against the order of the Tribunal dated 23rd October, 1982 or to have moved an application under Section 22 before the Tribunal for rectification of the mistake inasmuch the order passed by the Assistant Commissioner (Judicial) stood merged in the order of the Tribunal and instead of adopting those two recourses which, according to the assessee's counsel, were legally available, the Revenue filed an application under Section 22 of the Act before the Assistant Commissioner (Judicial) which was not maintainable.
5. Learned Standing Counsel on the contrary has urged that since there was no apparent mistake in the order passed by the Tribunal, there was no occasion for moving an application under Section 22 of the Act before the Tribunal. I cannot subscribe to the said proposition advanced on behalf of the Revenue. This fact has not been disputed that no revision challenging the order of the Tribunal was filed by the Revenue in this Court.
6. One very glaring feature of this case is that the Revenue had filed an appeal under Section 10 of the Act before the Tribunal against the order of the Assistant Commissioner (Judicial). If the Assistant Commissioner (Judicial) had committed any error in not imposing surcharge on the assessee even though the turnover fixed by him was more than Rs. two lacs, the Revenue could have agitated that point in the second appeal as well before the Tribunal but the said plea was never raised. In view of the aforesaid facts once the findings recorded by the Assistant Commissioner (Judicial) having been endorsed in toto by the Tribunal I am of definite view that the order passed by the Assistant Commissioner (Judicial) stood merged in the order passed by the Tribunal and it was not open to the Assistant Commissioner (Judicial) to have rectified his order dated 3rd February, 1981.
7. The Revenue has also tried to canvass before me that since the Revenue had challenged only estimation part of the order of the Assistant Commissioner (Judicial) before the Tribunal, the theory of merger could not be applied on that score. This contention is also wholly fallacious inasmuch as under Section 10(5) of the Act the Tribunal has been empowered by the legislature even to enhance the turnover fixed by the Assistant Commissioner (Judicial) and if the Revenue was aggrieved by non-imposition of surcharge, the same could have been levied by the Tribunal which would have amounted to enhancement of the tax. In view of the aforesaid discussions the order passed by the Tribunal dated 29th October, 1985, deserves to be set aside.
8. In the result the revision succeeds and is allowed. The order dated 29th October, 1985, passed by the Tribunal is set aside. However, there will be no order as to costs.