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Master Construction Co. (P) Ltd. Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC1047; [1966]3SCR99; [1966]17STC360(SC)
ActsOrissa Sales Tax Rules, 1947 - Rule 83; Orissa Sales Tax Act, 1947 - Sections 12(1), 12(4), 12(7) and 12(8); Constitution of India - Articles 136 and 226
AppellantMaster Construction Co. (P) Ltd.
RespondentState of Orissa and anr.
Cases ReferredState of Madras v. Gannon Dunkerley
Excerpt:
.....cases of respondents for regularisation is illegal. - both the questionof limitation as well as the question of construction of the appellate ordersand the impact of those orders on the amounts paid towards tax before theassessments, were arguable questions of fact and law......15, 1961 the sales tax officer, while holding that theappellant was entitled to the refund of the amounts paid by him, rejected hisapplication on the ground that it was filed only by one of the directorswhereas it should have been filed jointly by all the parties. on may 15, 1962the commissioner of sales tax, respondent no. 2 in this appeal, in a revisionfiled against the said order set aside the order of the sales tax officer andheld that the appellant was entitled to the refund applied for and directed thesaid officer to issue refund payment orders as early as possible. on january 5,1963 the said commissioner issued a notice to the appellant under r. 83 of thesaid rules calling upon him to show cause why the order dated may 15, 1962should not be reviewed. on september 24, 1963 the.....
Judgment:

Subba Rao, J.

1. This appeal, by special leave, raises the scope of jurisdiction of theCommissioner of Sales Tax under Rule 83 of the Orissa Sales Tax Rules, 1947.

2. The facts may be briefly stated. The appellant is a private limitedcompany carrying on business mainly as building contractors in the State ofOrissa. He was a registered dealer under the provisions of the Orissa Sales Tax Act, 1947, hereinafter called the Act. He was assessed to sales tax under s. 12sub-s. (4) of the Act in respect of all quarters ending on and in between June30, 1949 to March 31, 1954. He was also assessed to sales tax under s. 12 sub-s. (8) of the Act in respect of all quarters ending on and in between the dates of September 30, 1949 to March 31, 1950. Towards the said assessmentbetween December 6, 1950 to June 1954, he paid by way of sales tax sumsamounting to Rs. 53,220-14-0. On August 27, 1954, on the basis of the decisionof the Supreme Court in the case of State of Madras v. Gannon Dunkerley & Co. : [1959]1SCR379 the appellant filed a petition in the High Court ofOrissa under Art. 226 of the Constitution of India for a writ of certiorari toquash the said assessments. On April 22, 1958 the said High Court quashed thesaid assessment and directed refund of that portion of the tax which was notbarred by limitation on the date of the filing of the said application.

3. On July 9, 1958 the appellant field an application before the Sales TaxOfficer for the refund of the amounts payable to him in view of the saiddecision. On May 15, 1961 the Sales Tax Officer, while holding that theappellant was entitled to the refund of the amounts paid by him, rejected hisapplication on the ground that it was filed only by one of the directorswhereas it should have been filed jointly by all the parties. On May 15, 1962the Commissioner of Sales Tax, respondent No. 2 in this appeal, in a revisionfiled against the said order set aside the order of the Sales Tax Officer andheld that the appellant was entitled to the refund applied for and directed thesaid Officer to issue refund payment orders as early as possible. On January 5,1963 the said Commissioner issued a notice to the appellant under r. 83 of thesaid Rules calling upon him to show cause why the order dated May 15, 1962should not be reviewed. On September 24, 1963 the said Commissioner reviewedhis previous order and held that the appellant would be entitled to refund ofthe taxes paid subject to the disallowance made in his order. Hence the presentappeal.

4. Mr. Mahajan, the learned counsel for the respondents, raised apreliminary objection to the maintainability of the appeal on the ground thatthe appellant could not file the appeal unless it had exhausted the remedyunder Art. 226 of the Constitution of India. There are no merits in thiscontention. Art. 136 confers a discretionary appellate jurisdiction on thisCourt against any order passed by any Tribunal in the territory of India. Thesaid jurisdiction is not subject to any condition that the party who seeksspecial leave of this Court to appeal from such order should exhaust all hisother remedies. The existence of a statutory remedy to such a party maypersuade this Court not to give leave to appeal to the party. In the presentcase, the Act does not provide for a further remedy against the order made bythe Commissioner in revision. Under Art. 226 of the Constitution of India, theHigh Court's jurisdiction is discretionary and the scope of the jurisdiction,in view of the decisions of this Court, is rather limited. In thecircumstances, we do not see any justification to throw out this appeal on theground that the appellant has not exhausted all his remedies.

5. On the merits, Mr. Viswanatha Sastry appearing for the appellant, raisedbefore us two points : (1) under r. 83 of the Rules the jurisdiction of theCommissioner is very limited in that he can only correct arithmetical andclerical mistakes and errors apparent on the face of the record arising from anaccidental slip or omission. But the Commissioner in the instant case,practically reheard the revision and came to a conclusion different from thatwhich he had arrived on the earlier occasion. (2) The conclusions arrived at bythe Commissioner are not correct both on law and on facts.

6. Mr. Mahajan contended that the order made by the Commissioner was withinthe scope of his jurisdiction for he had only reviewed the previous order inrespect of the amounts not paid by the appellant to the Sales Tax authoritiesand in respect of those amounts directed to be repaid under a misapprehensionthat the said amounts were the subject matter of the appeals against the ordersof assessment, and the application in respect thereof was within time.

7. Mr. Mahajan attempted to take us through the particulars and details ofsuch payments, but we did not permit him to do so as nothing would turn uponthe said details to show whether the Commissioner had jurisdiction or not inreviewing his own order. If he had not, the fact that his order was not correcton facts would be quite irrelevant for the disposal of this appeal.

8. The material part of r. 83 of the said Rules reads :

'The Commissioner of Sales Tax........ may at anytime correct any arithmetical or clerical mistakes or any error apparent on theface of the record arising or occurring from accidental slip or omission in anorder passed by him, or it.'

9. Rule 83 provides a summary remedy within a narrow compass. Thejurisdiction of the Commissioner under this rule is limited and is confinedonly to the correction of mistakes or omissions mentioned therein. Anarithmetical mistake is a mistake of calculation; a clerical mistake is amistake in writing or typing. An error arising out of or occurring from anaccidental slip or omission is an error due to a careless mistake or omissionunintentionally made. There is another qualification namely, such an errorshall be apparent on the face of the record, that is to say, it is not an errorwhich depends for its discovery, on elaborate arguments on questions of fact orlaw. The accidental slip or omission is an accidental slip or omission made bythe court. The obvious instance is a slip or omission to embody in the ordersomething which the court in fact ordered to be done. This is sometimesdescribed as a decretal order not being in accordance with the judgment. Butthe slip or omission may be attributed to the Judge himself. He may saysomething or omit to say something which he did not intend to say or omit. Thisis described as a slip or omission in the judgment itself. The cause for such aslip or omission may be the Judge's inadvertence or the advocate's mistake.But, however wide the said expressions are construed, they cannot countenance are-argument on merits on questions of fact or law, or permit a party to raisenew arguments which he has not advanced at the first instance. If that was thescope of r. 83, the question is, whether the Commissioner's order is within itsscope.

10. On May 15, 1961, the Sales Tax Officer dismissed the application filedby the dealer for refund. Though he held that the appellant was entitled forrefund, he dismissed the application on the ground that it was signed only byone of the directors. In the appeal filed by the appellant against the saidorder to the Commissioner, the Commissioner by his order dated May 15, 1962 cameto the conclusion that the appellant was entitled to the refund applied for andthe Sales Tax Officer went wrong in rejecting the said application for refund.A perusal of the order shows that the Commissioner had looked into theconnected assessment record and came to the conclusion that, in view of theSupreme Court judgment and the order made by the Sales Tax Tribunal, Orissa,the appellant was entitled to the refund. But, in his order dated September 24,1963, he practically re-heard the entire matter both on facts and on law andcame to the conclusion that a part of the money, directed to be refunded by hisearlier order, should not be refunded. He has dealt with five items. Item (a)relates to the assessment for the quarters ending 30-9-1949 made under s. 12(1)of the Act and the assessment made under s. 12(7) for the quarters ending31-12-1949 to 31-3-50. He made a distinction between assessments made under s.12(1) and s. 12(7) of the Orissa Sales Tax Act and held the period oflimitation would commence from the date of the orders made thereunderrespectively. So holding, he came to the conclusion that the assessments unders. 12(7) were made final by November 1951; and an application for refund of thesaid amounts covered by the said assessments was barred by limitation. Inrespect of assessment made under s. 12(1), except in regard to Rs. 299-11-0, heheld the claim was barred by limitation. In regard to item (b), as it is aclear mistake, the learned counsel for the assessee conceded both in the courtbelow and before us that the amount covered by that item may be disallowed.Item (c) relates to the assessments made for the quarters ending 31-3-52,30-6-53, 30-9-53, 13-12-53 and 13-2-1954. Those assessments were set aside bythe first appellate authority by its order dated May 28, 1958. But theCommissioner held that the admitted tax paid before the orders of assessmentwas not the subject matter of appeals and therefore the amount paid towards theadmitted tax was not refundable. The contention of the assessee was that as theappellate authority had set aside the entire assessment, the assessee would beentitled to a refund of the entire tax, whether paid before or after the orderof assessment.

11. Item (d) relates to the assessment for the quarters ending 30-9-50 to31-12-51 and 30-6-52 to 31-3-53 (10 quarters excepting quarter ending 31-3-52).On the same reasoning adopted by the Commissioner in respect of item (c), heheld that, in regard to the amounts paid before the assessment, the assesseewas not entitled to a refund of the same. On behalf of the assessee, it wascontended that as the assessment orders were set aside he was entitled torefund of the amounts whether paid before or after the orders setting aside theassessments. Item (e) relates to refund of taxes paid in respect of Puri II andCuttack II Circles. That part of the order was not questioned before us.

12. It is therefore clear that the Commissioner reviewed his previous orderwhich was passed on merits mainly on two grounds : (i) that the application forrefund in respect of certain amounts was barred by limitation; and (ii) theassessee was not entitled to a refund of the amounts paid before the assessmentorders were made on the ground that the said amounts were not the subjectmatter of the appeals wherein the assessments were set aside. Both the questionof limitation as well as the question of construction of the appellate ordersand the impact of those orders on the amounts paid towards tax before theassessments, were arguable questions of fact and law. The Department shouldhave raised the said questions before the Commissioner at the time he firstmade the order directing refund of the amounts claimed by the assessee. Thewrong conclusion, if any, arrived at by the Commissioner in his earlier order,because of the fact that the said two arguments were not advanced before him,cannot be said to be errors apparent on the face of the record arising oraccruing from an accidental slip or omission. The errors, if any, arose becausethe Department did not raise those points before the Commissioner. They werealso errors not apparent on the face of the record for the decision dependsupon consideration of arguable questions of limitation and construction ofdocuments. Indeed the Commissioner re-heard arguments and came to a conclusiondifferent from that which he arrived on the earlier occasion. This is notpermissible under r. 83 of the Rules.

13. In this view, it is unnecessary to consider the argument advanced by Mr.Sastry that the application for refund was not barred by limitation as thefinal orders in regard to the assessments was made by the Tribunal only in theyear 1958.

14. In the result, the order of the Commissioner is set aside, except inregard to items (b) and (e) mentioned in paragraph 7 of his order. In thecircumstances, there will be no order as to costs.

15. Appeal allowed.


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