1. These two reference have been made under section 23(1) of the Bombay Sales Tax Act, 1946 (hereinafter referred to as 'the said Act'). A common question has been referred to us in these references and the facts are substantially similar. Therefore, these references are being deposed of by a common judgment.
2. The question, which has been referred to us for our consideration, is as follows :
'Whether, on the facts and circumstances of the case, the Tribunal erred in law in holding in Rectification Applications Nos. 26 and 27 of 1968 decided on 30th December, 1969, that a mistake within the meaning of section 23A of the Bombay Sales Tax Act, 1946, existed in its decision dated 20th December, 1966, given in Revision Applications Nos. 144 and 145 of 1964 ?'
3. The facts on which this question arises can be briefly stated as the references are being disposed of by us on a preliminary objection taken by Mr. Patel, the learned counsel for the respondent. The respondent was a registered dealer under the said Act and carried on wholesale business in crockery, lamp-wares, enamel-wares, glass-wares and so on. He was assessed by the Sales Tax Officer, B-Ward, for the periods from 1st October, 1949, to 31st March, 1951, and from 1st April, 1951, to 31st October, 1952, respectively, under section 11(2)(b) of the said Act by two orders dated 31st July, 1953. Thereafter, the Sales Tax Officer (VI), Enforcement Branch, Bombay, visited the place of business of the respondent and seized certain books. This was followed by reassessment for these two periods under section 11A of the said Act to bring the escaped turnover into assessment of tax. These orders of the Sales Tax Officer (VI), Enforcement Branch, were set aside by the Assistant Commissioner of Sales Tax in the appeals filed before him. After this, the Assistant Commissioner of Sales Tax (Special Duty), revised the orders of assessment and included the escaped turnover in the assessment of tax. The revision applications filed by the respondent against these orders were dismissed by the Tribunal. Then came the judgment of the Supreme Court in Swastik Oil Mills Ltd. v. H. B. Munshi : 2SCR492 . After this judgment the respondent filed rectification applications before the Tribunal and these applications were allowed in favour of the respondent. These references are directed against these orders passed by the Tribunals in the rectification applications.
4. Mr. Patel, the learned counsel for the respondent, took up a preliminary objection that these references were not maintainable at all as the orders passed by the Tribunal in the rectification applications under section 23A of the said Act were not covered by the provisions of section 23(1) of the said Act. To appreciate the arguments of Mr. Patel, it may be useful to set out here some of the relevant provisions of the said Act. Section 23(1) of the said Act runs as follows :
'(1) Within sixty days from the passing by the Tribunal of any order under sub-section (2) of section 21 or sub-section (1) of section 22 affecting any liability of any dealer to pay tax under this Act, such dealer or the Collector may, by application in writing accompanied where the application is made by a dealer by a fee of one hundred rupees, require the Tribunal to refer to the High Court any question of law arising out of such order, and where the Tribunal agrees it shall drawn up a statement of the case and refer it to the High Court.'
5. Section 23A(1) of the said Act provides that the Collector may at any time within two years from the date of any order passed by him, on his own motion, rectify any mistake apparent from the record and shall within a like period rectify any mistake apparent from the record which has been brought to his notice by a dealer. There is a proviso to this sub-section, but we are not concerned with the same in these references. Sub-section (2) of section 23A of the said Act provides that the provisions of sub-section (1) shall apply to the rectification of a mistake by the Tribunal as they apply to the rectification of a mistake by the Collector. Section 21 of the said Act provides for the right of appeal against an order of assessment. Section 22 of the said Act provides for a right of revision against orders passed under the said Act.
6. Certain analogous provisions of the Indian Income-tax Act, 1922, may also be usefully noticed at this stage. The relevant part of section 66(1) of the Income-tax Act, 1922 (hereinafter referred to as 'the Income-tax Act of 1922') runs as follows :
'Within sixty days of the date upon with he is served with notice of an order under sub-section (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application drawn up a statement of the case and refer it to the High Court.'
7. There is a proviso to this sub-section, which is not material for the purposes of these references. Section 33 of the Income-tax Act of 1922 provides for an appeal to the Appellate Tribunal against certain orders passed by the Appellate Assistant Commissioner and sub-section (4) of section 33 confers powers on the Appellate Tribunal to pass such orders on an appeal made to it as aforesaid as it thinks fit. Section 33A of the Income-tax Act of 1922 confers powers of revision on the Commissioner. Section 35 of the same Act deals with the right of rectification and the provisions of sub-sections (1) and (2) of that section show that the Appellate Tribunal has the same power of rectification of mistakes as the Commissioner or the Appellate Assistant Commissioner under the Income-tax of 1922.
8. On a plain reading of the relevant provisions of the said Act, viz., the Bombay Sales Tax Act, 1946, which we have referred to earlier, it appears to us that there is considerable substance in the submission of Mr. Patel that an order passed on a rectification application under section 23A of the said Act is not covered within the scope of section 23(1) of the said Act, which in terms provides for reference being made only in respect of orders passed by the Tribunal under sub-section (2) of section 21 or sub-section (1) of section 22 of the said Act. There is no reference in the provisions of section 23(1) of the said Act to any order made under section 23A of the said Act at all. A plain and grammatical construction of the provisions of section 23(1) of the said Act, therefore, seems to support the contention of Mr. Patel.
9. Although no decisions have been cited before us regarding these provisions of the said Act, some authorities have been brought to our notice in connection with the analogous provisions contained in the Income-tax Act of 1922, to which we have already referred above. In Commissioner of Income-tax, Madras v. O. RM. M. SM. SV. Sevugan : 16ITR59(Mad) , it has been held by a Division Bench of the Madras High Court that the rectification of an error under section 35 of the Income-tax Act of 1922 in an order passed by the Appellate Tribunal made under section 33(4) cannot be said to be the passing of a new order which gives a right to either party to apply to the Tribunal requiring a case to be stated referring a question or questions for the opinion of the High Court arising out of the order in which correction is made. The granting of the application for rectification and correcting the error in the order is not an order within section 33(4) nor one in respect of which section 66(1) enables a case to be stated. It has been further held in that decision that it cannot be contended that when a case has been state by the Tribunal to the High Court containing a question, the High Court has no province other than to express its opinion and to give its answer to the question and that it cannot consider the correctness or otherwise of the reference by the Tribunal. If the Tribunal improperly or incorrectly makes a reference in violation of the provisions of the statute, the High Court is capable of entertaining an objection to the statement of the case and, if it comes to the conclusion that it never should have been stated, the High Court is not compelled to express an opinion upon the question referred. The same view has been taken by a Division Bench of the Punjab High Court in R. B. L. Banarsi Dass & Co. Ltd. v. Income-tax Appellate Tribunal . It has been held in that case that where the Appellate Tribunal acts under section 35 of the Income-tax Act of 1922 and makes an order rectifying its order on appeal under section 33(4) a question of law arising out of the order of rectification passed under section 35 cannot be referred to the High Court under section 66. Where the Tribunal after making a distinct and separate order under section 35 implements it by incorporating the changes in the original order under section 33(4), the amended order cannot be regarded as one made under section 33(4) and questions of law that arise therefrom cannot be regarded as questions arising out of the original order under section 33(4). In Commissioner of Income-tax, Madras v. Arunachalam Chettiar : 23ITR180(SC) , it has been held by the Supreme Court that the jurisdiction given to the High Court under sub-section (2) of section 66 of the Income-tax Act of 1922 is conditional on an application under sub-section (1) being refused by the Appellate Tribunal. This clearly presupposes that the application under sub-section (1) was otherwise a valid application. It was further held that if an application under sub-section (1) was not well-founded, in that there was no order which could properly be said to be an order under sub-section (4) of section 33, then the refusal of the Appellate Tribunal to state a case on such misconceived application on the ground that no question of law arises will not authorise the High Court, on an application under sub-section (2) of section 66, to direct the Tribunal to state a case. The jurisdiction of the Tribunal and of the High Court is conditional on these being an order by the Appellate Tribunal which may be said to be one under section 33(4) and a question of law arising out of such an order. These decisions lend considerable support to the view, which we have expressed above, based on the plain and grammatical constructions of the provisions of section 23(1) of the Bombay Sales Tax Act, 1946.
10. It was submitted by Mr. Cooper, the learned counsel for the applicant, that even an order of rectification made under section 23A of the said Act was included within the scope of section 23(1) of that Act provided the liability of the assessee was specifically affected one way or the other. He has drawn our attention to the decision in Commissioner of Income-tax v. Shri Yodh Raj Bhalla and particularly to certain observations made by Weston, C.J., to the effect that in that case it was not necessary to consider whether in cases where the rectification substantially affects the rights of the assessee he would not be able to claim that the rectification in effect is a new order under section 33(4) of the Income-tax Act of 1922 and, therefore, a new right under section 66 arises from the rectification itself. These observations, in our view, do not help Mr. Copper. Even in the very case relied upon by him, Bhandari, J., who delivered the main judgment in that case, has observed that the language of section 66 of the Income-tax Act of 1922 makes it quite clear that a reference under sub-section (1) thereof can be made in respect of an appellate order under section 33(4). As the express mention of one thing implies the exclusion of another, the express mention of section 33(4) implies the exclusion of section 35 of that Act. There is nothing to show that Weston, C.J., has in any way dissented from these observations. The only thing which Weston, C.J., sought to keep open was the question whether, if an order purported to be passed in rectification substantially affected the rights of the assessee, in such a case, the assessee would not be entitled to claim that the order passed in rectification was in effect a new order under section 33(4) of the Act of 1922. In the case before us, no such question as contemplated by Weston, C.J., arises.
11. Mr. Cooper next drew our attention to the decision of a Division Bench of this Court in Sidhramappa v. Commissioner : 21ITR333(Bom) , where a reference was entertained regarding certain questions arising out of orders passed under section 35 of the Income-tax Act, 1922, and referred to this court by the Tribunal. This decision is really not in point at all. As frankly conceded by Mr. Cooper, no objection was raised before the Division Bench regarding the maintainability of the reference at all. All that happened was that the decision of the Madras High Court in Commissioner of Income-tax, Madras v. O. RM. M. SM. SV. Sevugan : 16ITR59(Mad) was cited in connection with the power of the Tribunal to rectify a mistake, and after referring to that decision, the Division Bench has stated that it expresses no opinion as to whether the view taken there was correct or not. This observation of the Division Bench clearly shows that it took the view that that decision was not material to the point raised before it.
12. In the result, in our view the objection of Mr. Patel must be upheld, and the reference are not competent. In our opinion, we have no jurisdiction to entertain the references and we reject the same.
13. As far as the question of costs is concerned, it is important to note that no objection was taken by the respondent to the making of these references or the framing of the statements of the case before the Tribunal. It is only in this court that Mr. Patel has raised the preliminary objection on which he has succeeded. In these circumstances, it appears to us proper that the parties should bear and pay their own costs of these references, and there will be an order accordingly.
14. References rejected.