R.L. Gulati, J.
1. The assessee is a dealer in foodgrains. In the assessment year 1966-67, he imported foodgrains from outside U.P. of the value of Rs. 2,53,056.32. He was assessed to and paid purchase tax on these imports. Under Section 3-D(1) of the U.P. Sales Tax Act, purchase tax is leviable on the first purchase. The assessee was not the first purchaser in U.P. of the foodgrains in question yet he paid the tax under a mistake. The Sales Tax Officer, Moradabad, who imposed the tax also did not notice the fact that the imports were not taxable and levied tax as if the imports were the first purchase by the assessee. Later on, the assessee realised the mistake. He accordingly made an application for rectification of the assessment order under Section 22 of the Act. The Sales Tax Officer agreed that there was a mistake as pointed out by the assessee, but he rejected the application for rectification on the ground that as the assessee had not disclosed the names of the first purchasers of foodgrains in U.P., the department was unable to levy tax in their hands. The assessee then went up in revision under Section 10 of the Act. The revising authority held that it was a case of mistake of law, which was apparent on the face of the record and the Sales Tax Officer was not justified in refusing to rectify the assessment order. He accordingly set aside the assessment order. The Commissioner of Sales Tax is aggrieved and at his instance the Judge (Revisions), Sales Tax, Bareilly, has submitted the following question for our opinion:
Whether, on the facts and in the circumstances of the case, there was any apparent mistake on the face of the record and was rectifiable under Section 22 of the U.P. Sales Tax Act?
2. Admittedly, the assessee had imported the foodgrains from outside U.P. As such, he could not be the first purchaser in U.P. of the foodgrains. The first purchasers will be the persons who purchased the foodgrains from the assessee. The mistake was patent and was admitted by the Sales Tax Officer. We cannot understand why such a mistake could not be rectified under Section 22 of the Act. Merely because the department was not able to trace out the persons who were liable to pay tax as the first purchasers is no ground for denying the relief to the assessee to which he was entitled under the law.
3. We accordingly answer the question in the affirmative in favour of the assessee and against the department. The assessee is entitled to the costs which we assess at Rs. 100.