Master Construction Co. (P) Ltd. Vs.
State of Orissa & ANR [1965] INSC 302 (16 December 1965)
16/12/1965 SUBBARAO, K.
SUBBARAO, K.
SHAH, J.C.
SIKRI, S.M.
CITATION: 1966 AIR 1047 1966 SCR (3) 99
CITATOR INFO:
R 1981 SC 736 (4)
ACT:
Orissa Sales Tax Rules, 1947, Rule 83--Scope
of-powers of Commissioner in reviewing his own orders.
HEADNOTE:
The appellant was a private limited company
carrying on business mainly as building contractors in the State of Orissa. It
was assessed to sales-tax under the provisions of the Orissa Sales Tax Act,
1947 and made payments towards the tax assessed. Subsequently on the basis of
the decision of this Court in State of Madras v. Gannon Dunkerley & Co. 119591
S.C.R. 379, the appellant filed a writ petition in the High Court challenging
the said assessments. The High Court quashed the assessments and directed
refund of that portion of the tax which was not barred by limitation on the
date of filing the application The appellant thereupon filed an application
before the Sales Tax Officer for refund of the amount payable to him in view of
the said decision. The Sales Tax Officer rejected the, application on the
ground that it was made by only one of the directors. The Commissioner of Sales
Tax in A revision filed against the said order set aside the order of the Sales
Tax Officer and held that the appellant was entitled to the refund applied for
and directed the said officer to issue refund payment orders as early as
possible. Subsequently the Commissioner issued a notice to the appellant under
r. 83 of the Orissa Sales Tax Rules, 1947 calling upon it to show cause why the
order earlier passed by him should not be reviewed. The Commissioner then
reviewed his. previous orders and held that the appellant would be entitled to
refund of the taxes paid subject to the disallowances made in his order. The
appellant appealed to this Court by special leave.
The question for consideration was whether
the Commissioner's Order in review was a proper order under r.
83.
HELD: Rule 83 provides a summary remedy
within a narrow compass. The jurisdiction of the Commissioner under this rule
is a limited one and is confined only to the correction of arithmetical or
clerical mistakes or 'errors apparent on the face of the 'record arising or occurring
from accidental slip or. omission in an order passed by him.
However widely the said expressions are
construed they cannot countenance a reargument on merits on questions of fact
or law, or permit a party to raise new arguments which he has not advanced in
the first instance. [102 F; 103 B] In the present case the Commissioner
reversed 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 assessee was not entitled to a refund of the amounts
paid before the assessment orders were made on the grounds that the said
amounts were not the subject matter of the appeals wherein the assessments were
set aside. Both the question of limitation as well as the question of
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 100 order directing refund of the
ammounts claimed by the assessee. The wrong 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 error 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 depended upon consideration of arguable questions of
limitation and construction of documents. Indeed the Commissioner reheard the
argument and came to a conclusion different from that which he arrived at on the
earlier occasion. That is not permissible under 83 of the Rules. [104 E-105 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 92 of 1965.
Appeal by special leave from the order dated
September 24, 1963 of the Commissioner of Sales Tax, Orissa, at Cuttack made
under Rule 83 of the Orissa Sales Tax Rules, 1947.
A. V. Viswanatha Sastry and B. P. Maheshwari,
for the appellant.
V. D. Mahajan and R. N. Sachthey, for the
respondent.
The judgment of the court was delivered by
Subba Rao, J. This appeal, by special leave, raises the scope of the
jurisdiction of the Commissioner of Sales Tax under Rule 83 of the Orissa Sales
Tax Rules, 1947.
The facts may be briefly stated. The
appellant is a private limited company carrying on business mainly as building
contractors in the State of Orissa. 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. 12 sub-s. (4) of the Act in respect of all
quarters ending on and in between June 30, 1949 to March 31, 1954. He was also
assessed to sales tax under so 12 sub-s.
(8) of the Act in respect of an quarters
ending on and between the dates September 30, 1949 to March 31, 1950.
Towards the said assessments between December
6, 1950 to June 1954, he paid by way of sales tax sums amounting to Rs.
53,220-14-0. On August 27, 1954, on the basis
of the decision of the Supreme Court in the case of State of Madras v. Gannon
Dunkerley & Co.(1) the appellant filed a petition in the High Court of
Orissa under Art. 226 of the Constitution of India for a writ of certiorari to
quash the said assessments. On April 22, 1958 the said High Court quashed the
said assessments and directed refund of that portion of the tax which was not
barred (1) [1959] S.C.R. 79.
101 by limitation on the date of the filing
of the said application On July 9, 1958 the appellant filed an application
before the Sales Tax Officer for the refund of the amounts payable to him in
view of the said decision. On May 15, 1961 the Sales Tax Officer, while holding
that the appellant was entitled to the refund of the amounts paid by him,
rejected his application on the ground that it was filed only by one of the
directors whereas it should have been filed jointly by all the parties. On May
15, 1962 the Commissioner of Sales Tax, respondent No. 2 in this appeal, in a
revision filed against the said order set aside the order of the Sales Tax
Officer and held that the appellant was entitled to the refund applied for and
directed the said Officer to issue refund payment orders as early as possible.
On January 5, 1963 the sad Commissioner
issued a notice to the appellant under r. 83 of the said Rules calling upon him
to show cause why the order dated May 15, 1962 should not be reviewed. On September
24, 1963 the said Commissioner reviewed his previous order and held that the
appellant would be entitled to refund of the taxes paid subject to the
disallowances made in his order. Hence the present appeal.
Mr. Mahajan, the learned counsel for the
respondents, raised a preliminary objection to the maintainability of the
appeal on the ground that the appellant could not file the appeal unless it had
exhausted the remedy under Art. 226 of the Constitution of India. There are no
merits in this contention. Art. 136 confers a discretionary appellate
jurisdiction on this Court against any order passed by any Tribunal in the
territory of India. The said jurisdiction is not subject to any condition that
the party who seeks special leave of this Court to appeal from such order
should exhaust all his other remedies. The existence of a statutory remedy to
such a. party may persuade this Court not to give leave to appeal to the party.
In the present case, the Act does not provide for a further remedy against the
order made by the Commissioner in revision. Under Art.
226 of the Constitution of India, the High
Court's jurisdiction is discretionary and the scope of the jurisdiction, in
view of the decisions of this Court, is rather limited. In the circumstances, we
do not see any justification to throw out this appeal on the ground, that the
appellant has not exhausted all his remedies.
On the merits, Mr. Viswanatha Sastry
appearing for the appellant, raised before us two points : (1) under r. 83 of
this Rule the jurisdiction of the Commissioner is very Limited in that he can
only correct arithmetical and clerical mistakes and errors apparent on the face
of the record arising from an accidental slip or omission. But the commissioner
in the instant case practically reheard the revision and came to a conclusion
different from that, which he had arrived on the earlier occasion. (2) The
conclusions arrived at by the Commissioner are not correct both on law and on
facts.
Mr. Mahajan contended that the order made by
the Commissioner was within the scope of his jurisdiction for he had only
reviewed the previous order in respect of the amounts not paid by the appellant
to the Sales Tax authorities and in respect of those amounts directed to be
repaid under a misapprehension that the said amounts were the subject matter of
the appeals against the orders of assessment, and the application in respect
thereof was within time.
Mr. Mahajan attempted to take us through the
particulars and details of such payments, but we did not permit him to do so as
nothing would turn upon the said details to show whether the Commissioner had
jurisdiction or not in reviewing his own order. If he had not, the fact that
his order was not correct on facts would be quite irrelevant for the disposal
of this appeal.
The material part of r. 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 omission 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 arithmetical 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 unintentionally 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 questions 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 103 to the Judge
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 Commissioners order is within its scope.
On May 15, 1961, the Sales Tax Officer
dismissed the application filed by the dealer for refund. Though he held that
the appellant was entitled for refund, he dismissed the application on the
around that it was signed only by one of the directors. In the appeal filed by
the appellant against the said order to the Commissioner, the Commissioner by
his order dated May 15, 1962 came to the conclusion that the appellant was
entitled to the refund applied for and the Sales Tax Officer went wrong in
rejecting the said application for refund. A perusal of the order shows that
the Commissioner had looked into the connected assessment record and came to
the conclusion that, in view of the Supreme 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 and came to
the conclusion that a part of the money, directed to be refunded by his,
earlier 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 ending 31-12-1949 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 of limitation would commence from the date of
the orders made there under respectively. So holding he came to' the conclusion
that the assessments under S. 12(7) were made final by November 1951; and an
application for refund of 'the said amounts covered by the said assessments was
barred by limitation. In respect of assessments made under S. 12(1), except in
regard to Rs. 299-1 1-0, he held the claim was barred by limitation. In regard
to item (b), as it is a clear mistake, the learned counsel for the assessee conceded
both in the court below and before us that the amount covered by that item may
be disallowed. Item (c) relates to the assessments made for the quarters 104
ending 31-3-52, 30-6-53, 30-9-53,13-12-53 and 13-21954.those assessments were
set aside by the first appellate authority by its order dated May 28, 1958. But
the Commissioner held that the admitted tax paid before the orders of
assessment was not the subject matter of appeals and therefore the amount NW
towards the admitted tax was not refundable. The contention of the ass was that
as the appellate authority had set aside the entire assessment, the assessee
would be entitled to a refund of the entire tax, whether paid before or after
the order of assessment.
Item (d) relates to the assessment for the
quarters ending 30-9-50 to, 31-12-51 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), he held that, in regard to the amounts paid before the
assessment, the assessee was not entitled to a refund of the same. On behalf of
the assessee, it was contended that as the assessment orders were set aside he
was entitled to refund of the amounts whether paid before or after the orders
setting aside the assessments. Item (e) relates to refund of taxes paid in
respect of Puri 11 and Cuttack II Circles.
That part of the order was not questioned
before us.
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 amount-was barred by
limitation; and (ii) the assessee was not 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 the assessments were set
aside. Both the question of limitation as well as the question of 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 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 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 105 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 r. 83 of the Rules.
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 the final orders in regard to the assessments was made
by the Tribunal only in the year 1958.
In the result, the order of the Commissioner
is set aside, except in regard to items (b) and (e) mentioned in paragraph 7 of
his order. In the circumstances, there will be no order as to costs.
Back
