@JUDGMENTTAG-ORDER
Dipak Misra, J.
By this writ petition preferred under Article 227 of the Constitution the petitioner has prayed for quashment of the order passed by the Board of Revenue on 27-8-98 contained in Annexure P-7.
The factual matrix as has been depicted is that the petitioner was assessed to Sales Tax for the period 1-4-1989 to 31-3-1990 on sale of crockery at the rate of 14%. It was claimed that tax on crockery should have been assessed at a concessional rate of 6% as per notification No. A-3-13- 1986(17)/ST-V dated 6-3-86. The claim was not accepted by the assessing authority as well as by the appellate authority. A Second Appeal was filed before the Board of Revenue which was decided in favour of the petitioner. After the appeal was disposed of an application was filed by the Commissioner, Sales-tax before the Board of Revenue for referring the question of law arising therein to this Court as per section 44(1) of the M.P. General Sales Tax Act. When the matter relating to reference came up for hearing before the Board of Revenue the counsel for the department prayed for review of the order passed in Second Appeal. The Board of Revenue by impugned order held that the earlier order passed by the Member, Board of Revenue was erroneous and hence, no reference to the High Court was necessary. The learned Member further directed that the a Division Bench should be constituted to review the decision.
Assailing the aforesaid order Mr. B.L. Nema, learned senior counsel for the petitioner has raised a singular contention that the Board of Revenue has no power of review. It is his submission that only provision which is available in the Act is section 45 which deals with rectification of mistakes and in exercise of power under that section, the Board of Revenue could not have reviewed its earlier order and sent the matter to a Division Bench for decision, as that amounts transgression of power and usurping of jurisdiction. It is also his submission that the review is a creature of statute and unless there is provision for review the statutory authority cannot review its own order. In support of the submission he has placed reliance on the decisions rendered in the cases of
Mr. R.S. Jha, learned Deputy General for the State has submitted that the Board has acted within its jurisdiction as the order passed would come within the ambit and sweep of the concept of rectification as envisaged u/s 45 of the Act. In support of his contention he has placed reliance on Shree Bhagwati Roller Flour Mills vs. Commissioner of Sales (Trade) Tax, (1998) 108 STC 157. The learned counsel for the State has also contended that every Tribunal has inherent power of review to correct the mistakes and also to pass orders which are incidental or ancillary in nature.
To appreciate the rival submissions raised at the Bar, it is appropriate and apposite to refer to section 45 of the Act. It reads as under:
45. Rectification of Mistakes. - (1) The Commissioner may:-
(i) on his own motion at any time within nine months from the date of any order passed by him; or
(ii) on an application made by the dealer within six months from the date of receipt of such application;
pass an order rectifying any mistake apparent from the record:
Provided that the Commissioner shall not entertain any application by the dealer unless it is made within six months from the date of the order sought to be rectified.
Provided further that no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of refund unless the Commissioner has given notice in writing to the dealer of his intention so to do and has allowed the dealer a reasonable opportunity of being heard.
(I-A) Where on an application made by a dealer for the rectification of any order, the order is not rectified within the period specified in sub-section (1), the applicant shall be entitled to have the order rectified in accordance with his application and accordingly the Commissioner shall rectify the order; and wherein proceedings initiated suo motu the order is not passed within the time specified in sub-section (1), the proceedings shall stand abated:
Provided that nothing herein shall preclude the Commissioner from exercising powers under any other provisions of this Act]
[(2) The provisions of sub-section (1) shall apply to rectification of a mistake by the Tribunal or the appellate authority in any order passed by it as they apply to the rectification of a mistake by the Commissioner.]
(3) Where any such rectification has the effect of reducing the amount of tax, the Commissioner shall in the prescribed manner refund any amount due to the dealer.
(4) Where any such rectification has the effect of enhancing the amount of tax or reducing the amount of the refund, the Commissioner shall recover the amount due from the dealer in the manner provided for in section 22.
Submission of Mr. Nema is that the present provision is pari materia to section 154 of the Income Tax Act, 1961. The Apex Court in the case of T.S. Balaram (supra) while interpreting the aforesaid provision held as under:
A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record.
Similar view has been expressed in the case of Chemical Lime (supra) as well as in the decision rendered in the case of Sagar Co-operative Central Bank Limited (supra). This Court in the case of Sagar Co-operative Central Bank (supra) was considering the provisions under the Income Tax Act. While so doing their Lordships held that the mistake must be an obvious and apparent one and not something which has to be established by a long drawn process. In this context, it is profitable to refer to the decision rendered in the case of,
7. The material part of Rule 83 of the said Rules reads:
''The Commissioner of Sales Tax................ may at any time correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or occurring from accidental slip or commission in an order passed by him, or it.''
Rule 83 provides a summary remedy within a narrow compass. The jurisdiction of the Commissioner under this Rule is limited and is confined only to the correction of mistakes or omissions mentioned therein. An arithmetic mistake is a mistake of calculation a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission untentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery on elaborate arguments on question of fact or law. The accidental slip or omission is an accidental slip or omission made by the Court. The obvious instance is a slip or omission to embody in the order something which the Court, in fact, ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the judgment himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judge''s inadvertence or the advocate''s mistake. But however wide the said expressions are construed they cannot countenance a re-argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. If that was the scope of R. 83, the question is whether the Commissioner''s order within its scope.
Their Lordships proceeded to lay down further:
10. It is, therefore, clear that the Commissioner reviewed his previous order which was passed on merits mainly on two grounds: (i) that the application for refund in respect of certain amounts was barred by limitation; and (ii) the assesses was entitled to a refund of the amounts paid before the assessment orders were made on the ground that the said amounts were not the subject-matter of the appeals wherein assessment were set aside. Both the question of limitation as well as the question of the construction of the appellate orders and the impact of those orders on the amounts paid towards tax before the assessments were arguable questions of fact and law. The Department should have raised the said questions before the Commissioner at the time he first made the order directing refund of the amounts claimed by the assessee. The wrong conclusions, 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 or accruing from an accidental slip or omission. The errors, if any, arose because the Department did not raise those points before the Commissioner. They were also errors not apparent on the face of the record for the decision depends upon consideration of arguable questions of limitation and construction of documents. Indeed the Commissioner re-heard arguments and came to a conclusion different from that which he arrived on the earlier occasion. This is not permissible under Rule 83 of the Rules.
Similar view has also been expressed by the Apex Court in the case of Shree Bhagwati Roller Flour Mills (supra). In the decision rendered in the case of
10. The next question is whether this error in the original order of assessment can be called an apparent error within the meaning of section 22 of the U.P. Act. There is no dispute that an apparent error means a patent mistake; an error which one could point out without any elaborate argument.
The obtaining factual matrix has to be tested on the anvil of the aforesaid enunciation of law.
Submission of Mr. Jha, learned Dy. A.G. for the State is that as Entry No. 36 of Part-II was not noticed by the Member, Board of Revenue, it was thought proper to rectify the said mistake by referring to the Division Bench.
Mr. Nema has opposed the aforesaid submission by referring to the earlier order passed by the Member, Board of Revenue. Mr. Nema submitted that there may be an error in appreciation of the facts or may be erroneous application of law but it cannot be said that the Member was totally oblivious of the relevant entry. On a perusal of the order it transpires that in paragraph 3 the Member had apprised himself with regard to the said entry. I have perused the impugned order wherein the learned Member has laboured hard to hold that the order passed on the earlier occasion is a vague one. The error perceived by the Board of Revenue is neither an apparent or patent one. In fact, it amounts to scanning and scrutiny of the earlier order on facts and law which is not permissible. In spite of best efforts made by Mr. Jha, I am not able to persuade myself to hold that order passed by the learned Member amounts to rectification of mistake. The order passed would not come within the ambit and sweep of the term ''rectification'' and hence, Annexure P-7 is susceptible. However, the application which has been filed by the State for reference to the Court u/s 44 shall be considered in accordance with law by the Board.
The writ petition is accordingly allowed. However, there shall be no order as to costs.
