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PETITIONER: MASTER CONSTRUCTION CO. (P) LTD.

       Vs.

RESPONDENT: STATE OF ORISSA AND ANOTHER

DATE OF JUDGMENT: 16/12/1965

BENCH: SUBBARAO, K. BENCH: 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

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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]

JUDGMENT: 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

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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 omis- 102 sion.  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

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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  appli- cation 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

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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 thereunder  respectively.  So holding he came to’  the  con- clusion 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   13-2- 1954.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 ex- cepting  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  construc- tion 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

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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 ad- vanced 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. Appeal allowed, L9Sup.CI/66-8 106