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 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
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
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
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
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