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M.V. Govindaraju Chetty and ors. Vs. Commercial Tax Officer, Hassan Circle, Hassan and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKarnataka High Court
Decided On
Case NumberWrit Petition Nos. 1607, 1608, 1609, 1611, 1612, 1613 and 1614 of 1965; 1256, 1257, 1258, 2121, 2122
Judge
Reported in(1967)2MysLJ385; [1968]22STC46(Kar)
ActsCentral Sales Tax Act; Limitation Act; Indian Income-tax Act, 1922 - Sections 18A(5) and 35; Constitution of India - Articles 141 and 226; Mysore Sales Tax Rules - Rule 38
AppellantM.V. Govindaraju Chetty and ors.
RespondentCommercial Tax Officer, Hassan Circle, Hassan and ors.
Appellant AdvocateK. Srinivasan and ;T.V. Srinivasan, Advs.
Respondent AdvocateG.V. Shantaraju for the High Court Special Government Pleader
Excerpt:
.....point out that mistake, no elaborate argument or debate is required, because there is the binding supreme court decision, clearly bringing out that mistake. , the respondents, were therefore clearly in error in not rectifying that mistake under section 35 of the act. it is also stated that the statement of principle by the bombay high court is incomplete because, it has not taken into account what should be described as well established proposition that subsequent decisions of the supreme court or of high courts do not have the result of reopening concluded matters. to say that a decision of the supreme court to the effect that a particular levy was wrong or not in accordance with law means that the levy was at no time good, is nothing more than to state in clear terms the real effect..........three subsequent decisions of this court reported in yaddalam lakshminarasimhiah setty & sons v. state of mysore ([1962] 13 s.t.c. 583), mysore silk house v. state of mysore ([1962] 13 s.t.c. 597) and karnatak coffee company v. commercial tax officer, davangere ([1962] 13 s.t.c. 658), and the rulings of the supreme court upon appeal in those cases reported in state of mysore v. yaddalam lakshminarasimhiah setty & sons ([1965] 16 s.t.c. 231), the state of mysore v. mysore silk house ([1966] 17 s.t.c. 309) and the state of mysore v. karnatak coffee company ([1966] 17 s.t.c. 311). that such is the position upon merits is not disputed. the turnover was in respect of certain articles like raw wool, cardamom, sikai, coffee and areca, subjected to a single point levy of sales tax under the.....
Judgment:
ORDER

Narayana Pai, J.

1. Of the writ petitions mentioned above, all the petitions of 1965 and petitions Nos. 1256 to 1258 and 2121 to 2127 of 1966 have been admitted and notice served on the respondent. The respondent is represented by the learned Government Pleader.

2. The remaining petitions of 1966, namely, Nos. 2724 and 2727 to 2733 are awaiting admission.

3. The principal contention on behalf of the petitioners in all these cases is that the turnover subjected to tax under the Central Sales Tax Act could not have been rightly so subjected in view of the clear declaration of the law in three subsequent decisions of this Court reported in Yaddalam Lakshminarasimhiah Setty & Sons v. State of Mysore ([1962] 13 S.T.C. 583), Mysore Silk House v. State of Mysore ([1962] 13 S.T.C. 597) and Karnatak Coffee Company v. Commercial Tax Officer, Davangere ([1962] 13 S.T.C. 658), and the rulings of the Supreme Court upon appeal in those cases reported in State of Mysore v. Yaddalam Lakshminarasimhiah Setty & Sons ([1965] 16 S.T.C. 231), The State of Mysore v. Mysore Silk House ([1966] 17 S.T.C. 309) and The State of Mysore v. Karnatak Coffee Company ([1966] 17 S.T.C. 311). That such is the position upon merits is not disputed. The turnover was in respect of certain articles like raw wool, cardamom, sikai, coffee and areca, subjected to a single point levy of sales tax under the State Act at the purchase point except in the case of coffee where the point is sale point. Upon the facts of these cases the assessee concerned was not liable to sales tax under the State Act. Consequently in the light of the decisions of this Court and the Supreme Court mentioned above, he could not have been made liable for tax under the Central Act either.

4. In all these cases except those covered by Writ Petitions Nos. 1607 to 1614 of 1965 the petitioners moved the assessing authority to act under rule 38 of the Mysore Sales Tax Rules, and to rectify the assessment orders in the light of the decisions mentioned above. All the applications for rectification were rejected.

5. Writ Petitions Nos. 1607 to 1614 of 1965 were presented to this Court on 18th August, 1965. On that date more than five years had elapsed since the date of the assessment order concerned in three petitions, namely, Nos. 1607 of 1965, 1611 of 1965 and 1614 of 1965. In the remaining four cases, an application for rectification under rule 38, if made, on the date on which the petitioner presented the writ petition would have been within the period of five years prescribed under rule 38.

6. In view of the facts mentioned above and the admitted legal position so far as the merits of the cases are concerned, the only point that was argued was whether in the circumstances of these cases, the petitioners can be said to have been guilty of such inordinate delay as to be disentitled to seek relief at the hands of this Court under Article 226 of the Constitution.

7. On behalf of the petitioners, two lines of argument have been pursued to make out that there is no such serious impediment to the petitioners approaching this Court under Article 226.

8. Firstly, it is stated that the delay cannot be regarded as unreasonable in the light of the principles stated by their Lordships of the Supreme Court in the cases reported in State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450; : [1964]6SCR261 and The State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689).

9. Alternatively it is argued that the decisions at any rate of the Supreme Court in The State of Mysore v. Yadalam Lakshminarasimhiah Setty & Sons ([1965] 16 S.T.C. 231), The State of Mysore v. Mysore Silk House ([1966] 17 S.T.C. 309) and The State of Mysore v. Karnatak Coffee Co. ([1966] 17 S.T.C. 311) would furnish sufficient basis and justification for a rectification of the assessment order under rule 38 of the Mysore Sales Tax Rules, and that therefore in cases where the Sales Tax Officer has refused to grant the application for rectification, there could properly be a writ of mandamus to him to rectify the orders in the light of the Supreme Court's decisions and in cases where no such rectification applications were made to him, this Court may itself quash the orders in cases where the writ petitions have been filed before the expiry of five years from the date of the impugned assessment orders. In support of this line of argument, reliance is placed on a decision of the Supreme Court reported in Venkatachalam v. Bombay Dyeing and . ([1958] 34 I.T.R. 143) and a decision of the Bombay High Court reported in Walchand Nagar Industries Ltd. v. Gaitonde ([1962] 44 I.T.R. 260).

10. The effect of the two decisions of the Supreme Court relied upon for the first proposition, namely. State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 and The State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689), is briefly the following :- In cases where an assessment is struck down on the ground that the provision of the taxation law which formed the basis of the assessment is declared unconstitutional and therefore void, not only will it be proper and appropriate for the Court to issue the consequential direction for refund of tax illegally collected, but also to proceed to exercise its initial power of quashing under Article 226 even in cases where there might be what appears to be inordinate delay, accompanied, however, by circumstances which would justify a proper exercise of discretion in favour of the petitioner. In the course of discussing the manner in which the discretion could be exercised by the High Court under Article 226 of the Constitution, their Lordships thought that in cases where the basic provision itself is struck down as unconstitutional, the assessee affected by the illegal levy will have a right to institute a regular suit for recovery of the tax illegally collected, and that the period of limitation therefor might be the one prescribed by article 96 of the First Schedule to the Limitation Act, namely, three years from the date on which the plaintiff became aware of the mistake in consequence of which the original order had been made. But in further elaboration of the principle on the basis of the proposition, it is not stated that there is no inordinate or culpable delay at all until the three years' period has expired, but that if more than three years had elapsed, it would certainly be an improper discretion to entertain a writ petition or issue a writ under Article 226 of the Constitution. In cases where such three years had not elapsed, all that their Lordships say is that if there are other circumstances which would render the delay not culpable at the instance of the petitioner, it may not be regarded as unreasonable exercise of discretion for the High Court to proceed to exercise its power under Article 226 treating the delay as not culpable in the light of the special circumstances noticed by it.

11. Now in the present case there is no decision that any of the provisions of the Central Sales Tax Act under which the impugned assessment orders were passed was unconstitutional or incompetent nor is there any decision either by this Court or by the Supreme Court to the effect that the original assessing authority did not have the jurisdiction to decide whether the turnover in question was or was not liable to tax under the Central Sales Tax Act. Although the approach made by this Court and the Supreme Court was not the same in all respects, the fundamental question discussed by both the Courts was one of interpretation of the relevant provisions of the Central Sales Tax Act.

12. In view of these clear features of these cases, we are not persuaded that it is open to the petitioners to make such use of the principles stated by their Lordships in State of Madhya Pradesh v. Bhailal Bhai : [1964]6SCR261 and The State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689) as to contend that the delay in these cases could never be regarded as culpable or as a circumstance which could be completely ignored in deciding the merits of the prayer for the issue of the writs to get rid of the effect of the impugned assessment orders.

13. Coming now to the second line of argument, rule 38 of the Mysore Sales Tax Rules which empowers the assessing authority, the appellate authority as well as the Sales Tax Appellate Tribunal to rectify any mistake apparent on the record, is both in effect and to a considerable extent in the choice of words similar to or in pari materia with section 35 of the Indian Income-tax Act, 1922. The applicability of the provisions of the said section 35 to cases where the assessment order becomes wrong by reason of subsequent legislation with retrospective effect is considered by the Supreme Court in the case reported in Venkatachalam v. Bombay Dyeing and . ([1958] 34 I.T.R. 143). Acting under section 18A(5) of the Income-tax Act, the assessing authority had given credit for interest on advance tax to the assessee to the extent of Rs. 50,603. At the time the said order had been made it was a correct application of section 18A(5). By subsequent amendment which was given retrospective effect, the correct amount of interest came down to Rs. 21,157. Thereupon the Income-tax Officer having proceeded to rectify his previous order, demanded the return of the excess paid to the assessee of the sum of Rs. 29,446. The Bombay High Court on being approached by the assessee took the view that the exercise of the power of rectification by the Income-tax Officer was beyond the scope of section 35 of the Income-tax Act. This view was reversed by the Supreme Court, which pointed out that the consequence of the retrospective amendment of section 18A(5) was that the said section as amended should be regarded as having been in force on the date the officer had made his order and that it automatically rendered the said order wrong. The Court further held that the mistake so brought about in the order by retrospective legislation was clearly a mistake apparent on the record amenable to rectification under section 35 of the Income-tax Act.

14. The same principle was extended or applied by the Bombay High Court to a subsequent ruling of the Supreme Court rendering a previous order wrong in law, in the case reported in Walchand Nagar Industries Ltd. v. Gaitonde ([1962] 44 I.T.R. 260). It was argued before the Court that a mistake which could be rectified under section 35 can only be a mistake which existed in the order at the time it came to be made in the light of the facts and the law prevalent at that time. While accepting the said proposition to be correct, the High Court rejected the further argument built upon it to the effect that the considerations applicable to retrospective legislation may not be available in the case of a decision of the Supreme Court and expressed itself as follows at page 265 of the report, after referring to the decision of the Supreme Court in Venkatachalam's case ([1958] 34 I.T.R. 143) mentioned above :

'It would be seen that even though the assessment order made by the Income-tax Officer was a good order on the date it was made, the subsequent enactment rendered that order into a mistaken order, and it was held that that mistake could be rectified under section 35 of the Act. Mr. Joshi tried to distinguish this case from the present case. It is his argument that the order made by the Income-tax Officer in that case was rendered bad by the subsequent enactment, while the order in the instant case, which was a good order, was rendered bad as a consequence of a subsequent judicial pronouncement. We find it difficult to accept this argument and the distinction. In our opinion, the present case is stronger than the other case. The effect of the decision of their Lordships of the Supreme Court is that the levy of excess dividend tax was, at no time, good. The levy was invalid, and that being the true legal position, the order made by the Income-tax Officer was bad at its inception on the date it was made, and that was a mistake; to point out that mistake, no elaborate argument or debate is required, because there is the binding Supreme Court decision, clearly bringing out that mistake. The mistake, therefore, in our opinion, is a mistake apparent from the record, within the meaning of section 35 of the Act. The authorities concerned, i.e., the respondents, were therefore clearly in error in not rectifying that mistake under section 35 of the Act.'

15. The argument on behalf of the department before us has been that this statement of the principle by the Bombay High Court must be regarded as having been stated in rather wide terms and that at the highest it court be applied only to cases in which the Supreme Court's ruling is limited to declaring the invalidity or unconstitutionality of any legal provision. It is also stated that the statement of principle by the Bombay High Court is incomplete because, it has not taken into account what should be described as well established proposition that subsequent decisions of the Supreme Court or of High Courts do not have the result of reopening concluded matters.

16. We do not think that any of the arguments so addressed can be accepted. The Bombay High Court has not, in our opinion, stated a principle in any wide terms. To say that a decision of the Supreme Court to the effect that a particular levy was wrong or not in accordance with law means that the levy was at no time good, is nothing more than to state in clear terms the real effect of a decision of the Court. The decision gets rid of the order as it was originally made which gave rise to the appeal to the Supreme Court in which the decision in question was rendered. That is the position so far as the particular case decided is concerned. It is no doubt true that every decision does not reopen every other concluded matter. But it is equally emphatic that under Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all courts within the territory of India. Whenever, therefore, any court or any authority in India has occasion to apply the law, it is bound to apply it as declared by the Supreme Court. Although a decision of the Supreme Court may not reopen a concluded decision, if an appeal is pending against an order at the time a decision of the Supreme Court is rendered, there is no question that the appeal will have to be decided in accordance with the decision of the Supreme Court applying the law as declared by the Supreme Court. If an appeal had not been filed, but the time for presenting the same has not expired, the appellant is certainly entitled to ask the appellate court to reverse the original order in the light of the decision of the Supreme Court.

17. If such is the clear position in law, we cannot see any difficulty in one taking advantage of a provision for rectification of a mistake by the original authority in the same way as he may take advantage of a provision for preferring an appeal against his order, provided the circumstances are such that he can bring the case within the four corners of the provision for rectification.

18. First of the conditions for rectification under rule 38 of the Mysore Sales Tax Rules or under section 35 of the Indian Income-tax Act is that the mistake sought to be rectified must be a mistake apparent on the record. What mistakes are mistakes apparent on the record is a matter covered by several decisions of the Supreme Court and High Courts. Although the position may not be capable of a general statement of universal application, two considerations which are considered well established are that a claim that there is a mistake which is capable of being made out only upon further evidence or investigation of further facts can never be regarded as a claim that there is any mistake apparent on the face of the record, and that a mistake which cannot be made out except upon long and elaborate argument cannot ordinarily be regarded as a mistake apparent on the face of the record. Where, however, no further investigation of facts is called for and on the facts found, the principle of law declared by the Supreme Court may be straightaway applied with the consequence of rendering an existing order mistaken it would certainly be a case of mistake apparent on the face of the record within the meaning of section 35 of the Income-tax Act as well as rule 38 of the Mysore Sales Tax Rules.

19. That exactly is the position on facts and law in these cases. No further investigation of facts is called for. On the facts as found by the assessing authority in these various cases, the turnover could not have been subjected to any tax under the Central Sales Tax Act in the light of the decisions of the Supreme Court reported in The State of Mysore v. Yadalam Lakshminarasimhiah Setty and Sons ([1965] 16 S.T.C. 231), The State of Mysore v. Mysore Silk House ([1966] 17 S.T.C. 309) and The State of Mysore v. Karnatak Coffee Co. ([1966] 17 S.T.C. 311).

20. The other condition for availing oneself of the power of rectification under rule 38 is the rule of limitation, that five years should not have elapsed from the date of the order sought to be rectified. In all cases except Writ Petitions Nos. 1607, 1611 and 1614 of 1965, the petitioners had presented rectification applications before the expiry of five years from the date of the orders (we are not now referring to cases pending for admission). In those cases, therefore, there is no doubt that the assessing authority was bound to rectify the orders. The direct consequence of this is to quash the order itself levying tax on the petitioners. Hence, in those cases there will have to be an order quashing the assessment orders straightaway and directing refund of the tax collected. Those cases are the following : W.P. Nos. 1256, 1257, 1258, 2121, 2122, 2123, 2124, 2125, 2126 and 2127 of 1966. In each of these cases, therefore, there will be an order quashing the impugned assessment order and directing the original authority to make a refund of the tax collected from the petitioner.

21. In Writ Petitions Nos. 1607, 1611 and 1614 of 1965, more than five years had elapsed from the date of the assessment order impugned therein before the petitioner approached this Court (i.e., 18th August, 1965). He has also not presented any application to the assessing authority under rule 38 of the said Rules. Therefore, these three petitions have to be and are hereby dismissed.

22. As to the other four Writ Petitions Nos. 1608, 1609, 1612 and 1613 of 1965, though no application has been made to the assessing authority for rectification, the petitioner has approached this Court within the period of five years next after the impugned assessment orders. The explanation by the petitioner for his omission to approach the officer is that it would have been idle formality to have done so, because in other similar cases in spite of the decision of the Supreme Court, as is clear from the facts discussed above, the officer had not considered the applications and had rejected them. Although this may not be a good explanation, in ordinary circumstances, we find that except in the case of W.P. No. 1608 of 1965, the orders by the assessing authority in the other three cases were all orders after the date of the decision of this Court reported in Yadalam Lakshminarasimhiah Setty & Sons v. State of Mysore ([1962] 13 S.T.C. 583), Mysore Silk House v. The State of Mysore ([1962] 13 S.T.C. 597) and Karnatak Coffee Company v. Commercial Tax Officer, Davangere ([1962] 13 S.T.C. 658). We do not think, therefore, that the department can with any show of reason say that the omission to make an application for rectification on the part of the petitioner can be held against him in these writ petitions.

23. In each of these writ petitions, namely, Nos. 1608, 1609, 1612 and 1613 of 1965, also there will be an order quashing the impugned assessment order and directing refund of the tax collected.

24. We come now to the group of writ petitions which are awaiting admission. In two of them, namely, Nos. 2724 and 2727 of 1966, it is clear that more than five years have elapsed from the date of the impugned assessment orders. Hence, these petitions have to be and are rejected.

25. In the other three of them, namely, Nos. 2728, 2729 and 2730 of 1966, the petitioner is not able to give us the date of the assessment order. Although his learned counsel suggests that having regard to the assessment years dealt with in those petitions, it is possible that five years from the date of the assessment order had not elapsed before the petitioner made the rectification application on 3rd March, 1966, we cannot say that the petitioner has made out a clear case for interference. But then his learned counsel says that his inability should not at any rate at this stage be charged against him because the certified copies of the assessment orders received by him from the department do not indicate the exact date on which the original orders had been passed. The writ petitions are, therefore, admitted and emergent notice will issue to the respondent returnable within ten days.

26. In the other three writ petitions, namely Nos. 2731, 2732 and 2733 of 1966, the rectification applications were clearly within the period of limitation prescribed by law. These petitions are also admitted. Emergent notice will issue to the respondent returnable within ten days.

27. No costs in any petition.

28. Writ Petitions Nos. 1606 and 1610 of 1965 and 1417 and 1418 of 1966 which have been posted for hearing along with these cases are not dealt with because they deal with other point or points also. All these four writ petitions stand adjourned to next Monday the 13th February, 1967.

29. Ordered accordingly.


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