JUDGMENT
Rajesh Balia, J.
1. This revision is directed against the order passed by the Rajasthan Sales Tax Tribunal dt. 2.8.1989 in Rectification Applications No. 2/89 to 5/89.
2. The brass facts necessary for the purpose are that the Rajasthan Sales Tax Tribunal vide its order dt. 3.8.1985 had allowed the special appeals filed by the dealer-assessee in respect of four assessment periods for the assessment years 1964-65 to 1968-69. For these periods the assessee had not filed any return Under Secttion 7A nor any assessment were framed Under Section 10(1)(b). The assessments, were made by the Assessment Officer for the first time in January, 1974 for four assessment years separately by way of best assessment judgment Under/Section 10(1)(b). The Tribunal in the first instance in its order dt. 3.8.1985 has held that the case of dealer who does not file any return whatsoever falls in the category of a case where whose turnover has escaped assessment and unless resort is taken to Section 12 for bringing the within the purview of assessment escaped turnover the assessing authority cannot resort to make assessment Under Section 10(1)(b) straightway. For that purpose it has placed reliance on a Division Bench decision of this Court in Arbind & Co. v. State of Rajasthan 1979 43 STC-430. An application under Section 17 of the Rajasthan Sales Tax Act appears to have been made just before the close of four years from the date of the order passed by the Sales Tax Tribunal for rectifying the aforesaid order. While no interference has been made in respect of assessment year 1964-65 and 1965-66, the Tribunal resorted in invoke its power u/s. 17 for rectifying its own order on the ground that the Sales Tax Tribunal as well as the High Court in its decision in Arbind & Company’s case (supra) has not noticed the amendment made in Section 10(1)(b) by omitting the words ‘of previous year’, and therefore, the mistake is apparent in the order and the Tribunal, therefore, allowed the application and restored the assessment orders. It is against that order the dealer has filed this revision petition.
3. Having heard learned Counsel for the parties I am of the opinion that the Tribunal has clearly erred in invoking jurisdiction Under Section 17 for rectifying its own earlier order. Section 17 is not an order in the nature of appeal or reviewing its earlier order by any authority finding it to be not acceptable. It has limited jurisdiction which can be invoked only in cases to correct any mistake apparent from the record. The connotation ‘mistake apparent from the record’ as per well established interpretation received through juridical pronouncement envisages a mistake which is discernible without consideration of a debatable issue by examining the pros and cons of the merit of the question. Any mistake on discovery of debatable issue does not fall within the purview of mistake apparent from the record. Reference in this connection may be made to a decision of the Supreme Court in T.S. Balaram v. Volkart Brothers wherein the Court stated that 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 conceivably be two opinions.
4. Apart from the fact a decision of the Sales Tax Tribunal on earlier occasion rested on a decision of this Court which was binding on it whether that judgment of this Court governing the facts of the present case were erroneous or per incuriam for want of some defect in the order was not on which the Sales Tax Tribunal was competent to pronounce and to pronounce effectively so as to rectify its earlier order considering it to be suffering from an error apparent on record to be corrected by it by reaching a different conclusion, cannot be accepted. Power is not given to subordinate Tribunals to pronounce upon the correctness of the decisions given by the superior Courts. Distinguishing a decision on the basis of facts from applicability is one thing than to say that the judgment is not binding because it is per incuriam. No court is entitled to title a judgment of the superior Court to be per incuriam so as to nullify its binding effect on it. It may be worthwhile to notice that the judgment in question covered the period 1963-64 to 1973-74 covering substantial period after Section 10(1)(b) came in the present form, for coming to its conclusion that in a case where no return has been filed u/s. 7(1) of the Act and no assessment has been made under Clause (b) of Sub-section (1) of Section 10 even after close of the accounting year then it must be deemed that the turn over of the dealer has escaped assessment to tax and a notice under Section 12(1) will have to be issued. If the assessing authority for any reason considers that the whole of the business of the dealer has escaped assessment, then he may serve notice u/s. 12(1) and may thereafter assess the amount of tax payable by such dealer. Admittedly the Tribunal in its judgment under revision has relied on an amendment which has taken place some where in July, 1967. Apparently, the period which was considered by this Court in Arbind & Co. (supra) was substantially the period falling after that period and yet the Tribunal has held that decision per incuriam. It is too presumptuous for the Tribunal to have come to the conclusion that the Court has arrived at a different conclusion in ignorance of the correct position of law or oblivion in changes of any law. At any rate it raises a debatable issue whether the judgment in Arbind & Company’s case would stand the test on consideration of amendment and could have been distinguished cannot be considered a decision where any error is apparent from the record. That process require determination of seriously debatable issue on which there could be bonafide difference of opinion. I am of the opinion that the Tribunal has invoked the power to rectify without satisfying itself about existence of any error apparent from the record and the order u/s. 17 cannot be sustained.
5. The petition, therefore, succeeds and order under revision is set aside.