{"id":187431,"date":"1965-12-16T00:00:00","date_gmt":"1965-12-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/master-construction-co-p-ltd-vs-state-of-orissa-and-another-on-16-december-1965"},"modified":"2016-05-23T09:21:05","modified_gmt":"2016-05-23T03:51:05","slug":"master-construction-co-p-ltd-vs-state-of-orissa-and-another-on-16-december-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/master-construction-co-p-ltd-vs-state-of-orissa-and-another-on-16-december-1965","title":{"rendered":"Master Construction Co. (P) Ltd vs State Of Orissa And Another on 16 December, 1965"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Master Construction Co. (P) Ltd vs State Of Orissa And Another on 16 December, 1965<\/div>\n
Equivalent citations: 1966 AIR 1047, \t\t 1966 SCR (3)\t 99<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Subbarao, K.<\/div>\n
           PETITIONER:\nMASTER CONSTRUCTION CO. (P) LTD.\n\n\tVs.\n\nRESPONDENT:\nSTATE OF ORISSA AND ANOTHER\n\nDATE OF JUDGMENT:\n16\/12\/1965\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nSHAH, J.C.\nSIKRI, S.M.\n\nCITATION:\n 1966 AIR 1047\t\t  1966 SCR  (3)\t 99\n CITATOR INFO :\n R\t    1981 SC 736\t (4)\n\n\nACT:\nOrissa\tSales Tax Rules, 1947, Rule 83--Scope  of-powers  of\nCommissioner in reviewing his own orders.\n\n\n\nHEADNOTE:\nThe  appellant\twas a private limited  company\tcarrying  on\nbusiness  mainly  as building contractors in  the  State  of\nOrissa.\t  It was assessed to sales-tax under the  provisions\nof the Orissa Sales Tax Act, 1947 and made payments  towards\nthe tax assessed.  Subsequently on the basis of the decision\nof  this Court in State of Madras v. Gannon Dunkerley &\t Co.<\/a>\n119591\tS.C.R. 379, the appellant filed a writ\tpetition  in\nthe  High Court challenging the said assessments.  The\tHigh\nCourt  quashed the assessments and directed refund  of\tthat\nportion of the tax which was not barred by limitation on the\ndate of filing the application The appellant thereupon filed\nan  application before the Sales Tax Officer for  refund  of\nthe amount payable to him in view of the said decision.\t The\nSales  Tax Officer rejected the, application on\t the  ground\nthat  it  was  made  by only  one  of  the  directors.\t The\nCommissioner  of Sales Tax in A revision filed\tagainst\t the\nsaid order set aside the order of the Sales Tax Officer\t and\nheld  that the appellant was entitled to the refund  applied\nfor  and directed the said officer to issue  refund  payment\norders as early as possible.  Subsequently the\tCommissioner\nissued\ta notice to the appellant under r. 83 of the  Orissa\nSales Tax Rules, 1947 calling upon it to show cause why\t the\norder  earlier\tpassed by him should not be  reviewed.\t The\nCommissioner  then  reviewed his. previous orders  and\theld\nthat the appellant would be entitled to refund of the  taxes\npaid  subject to the disallowances made in his\torder.\t The\nappellant appealed to this Court by special leave.\nThe    question\t  for\tconsideration\twas   whether\t the\nCommissioner's\tOrder in review was a proper order under  r.\n83.\nHELD:\t  Rule 83 provides a summary remedy within a  narrow\ncompass.  The  jurisdiction  of the Commissioner under\tthis\nrule is a limited one and is  confined\t  only\t  to\t the\ncorrection  of arithmetical or clerical mistakes or  'errors\napparent  on  the face of the 'record arising  or  occurring\nfrom accidental slip or. omission in an order passed by him.\nHowever\t widely\t the  said expressions\tare  construed\tthey\ncannot\tcountenance a reargument on merits on  questions  of\nfact or law, or permit a party to raise new arguments  which\nhe has not advanced in the first instance. [102 F; 103 B]\n In the present case the Commissioner reversed his  previous\norder which was passed on merits mainly on two grounds : (i)\nthat  the  application\tfor refund in respect  of  certain\namounts was barred by limitation-, and (ii) the assessee was\nnot  entitled  to a refund of the amounts  paid\t before\t the\nassessment  orders  were made on the grounds that  the\tsaid\namounts\t were not the subject matter of the appeals  wherein\nthe  assessments  were\tset aside.   Both  the\tquestion  of\nlimitation  as well as the question of construction  of\t the\nappellate  orders  and\tthe impact of those  orders  on\t the\namounts\t paid  towards\ttax  before  the  assessments\twere\narguable  questions of fact and law.  The Department  should\nhave  raised the said questions before the  Commissioner  at\nthe time he first made the\n100\norder  directing  refund  of the  ammounts  claimed  by\t the\nassessee.  The\t wrong conclusion if any arrived at  by\t the\nCommissioner in his earlier order, because of the fact\tthat\nthe said two arguments were not advanced before him,  cannot\nbe  said  to be error on the face of the record\t arising  or\naccruing from an accidental slip or omission.  The errors if\nany arose because the Department did not raise those  points\nbefore the Commissioner.  They were also errors not apparent\non  the\t face of the record for the decision  depended\tupon\nconsideration  of  arguable  questions\tof  limitation\t and\nconstruction of documents.  Indeed the Commissioner  reheard\nthe  argument and came to a conclusion different  from\tthat\nwhich  he arrived at on the earlier occasion.  That  is\t not\npermissible under 83 of the Rules. [104 E-105 A]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 92 of 1965.
\nAppeal\tby special leave from the order dated September\t 24,
\n1963  of the Commissioner of Sales Tax, Orissa,\t at  Cuttack
\nmade under Rule 83 of the Orissa Sales Tax Rules, 1947.
\nA.   V.\t Viswanatha  Sastry and B. P.  Maheshwari,  for\t the
\nappellant.\n<\/p>\n
V. D. Mahajan and R. N. Sachthey, for the respondent.
\nThe judgment of the court was delivered by
\nSubba  Rao,  J. This appeal, by special\t leave,\t raises\t the
\nscope  of the jurisdiction of the Commissioner of Sales\t Tax
\nunder Rule 83 of the Orissa Sales Tax Rules, 1947.
\nThe facts may be briefly stated.  The appellant is a private
\nlimited\t company  carrying on business\tmainly\tas  building
\ncontractors  in\t the State of Orissa.  He was  a  registered
\ndealer\tunder  the provisions of the Orissa Sales  Tax\tAct,
\n1947, hereinafter called the Act.  He was assessed to  sales
\ntax  under  s. 12 sub-s. (4) of the Act in  respect  of\t all
\nquarters ending on and in between June 30, 1949 to March 31,
\n1954.  He was also assessed to sales tax under so 12  sub-s.
\n(8)  of\t the  Act in respect of an quarters  ending  on\t and
\nbetween\t the  dates September 30, 1949 to  March  31,  1950.
\nTowards\t the  said assessments between December 6,  1950  to
\nJune 1954, he paid by way of sales tax sums amounting to Rs.
\n53,220-14-0.   On  August  27, 1954, on\t the  basis  of\t the
\ndecision of the Supreme Court in the case of State of Madras
\nv. Gannon Dunkerley & Co.<\/a>(1) the appellant filed a  petition
\nin  the\t High  Court  of  Orissa  under\t Art.  226  of\t the
\nConstitution of India for a writ of certiorari to quash\t the
\nsaid  assessments.   On April 22, 1958 the said\t High  Court
\nquashed\t the  said assessments and directed refund  of\tthat
\nportion of the tax which was not barred
\n(1)  [1959] S.C.R. 79.\n<\/p>\n
101<\/span><\/p>\n
by  limitation\ton  the\t date of  the  filing  of  the\tsaid
\napplication   On  July\t9,  1958  the  appellant  filed\t  an
\napplication  before the Sales Tax Officer for the refund  of
\nthe amounts payable to him in view of the said decision.  On
\nMay  15, 1961 the Sales Tax Officer, while holding that\t the
\nappellant was entitled to the refund of the amounts paid  by
\nhim,  rejected\this application on the ground  that  it\t was
\nfiled  only by one of the directors whereas it\tshould\thave
\nbeen filed jointly by all the parties.\tOn May 15, 1962\t the
\nCommissioner of Sales Tax, respondent No. 2 in this  appeal,
\nin  a  revision filed against the said order set  aside\t the
\norder  of the Sales Tax Officer and held that the  appellant
\nwas entitled to the refund applied for and directed the said
\nOfficer to issue refund payment orders as early as possible.
\nOn  January 5, 1963 the sad Commissioner issued a notice  to
\nthe appellant under r. 83 of the said Rules calling upon him
\nto show cause why the order dated May 15, 1962 should not be
\nreviewed.   On\tSeptember  24, 1963  the  said\tCommissioner
\nreviewed  his  previous order and held\tthat  the  appellant
\nwould be entitled to refund of the taxes paid subject to the
\ndisallowances made in his order.  Hence the present appeal.
\nMr. Mahajan, the learned counsel for the respondents, raised
\na preliminary objection to the maintainability of the appeal
\non  the ground that the appellant could not file the  appeal
\nunless\tit  had exhausted the remedy under Art. 226  of\t the
\nConstitution  of  India.   There  are  no  merits  in\tthis
\ncontention.   Art.  136 confers\t a  discretionary  appellate
\njurisdiction  on this Court against any order passed by\t any
\nTribunal  in the territory of India.  The said\tjurisdiction
\nis  not\t subject to any condition that the party  who  seeks
\nspecial leave of this Court to appeal from such order should
\nexhaust\t all  his  other  remedies.   The  existence  of   a
\nstatutory  remedy to such a. party may persuade\t this  Court
\nnot  to give leave to appeal to the party.  In\tthe  present
\ncase, the Act does not provide for a further remedy  against
\nthe order made by the Commissioner in revision.\t Under\tArt.
\n226   of  the  Constitution  of\t India,\t the  High   Court’s
\njurisdiction   is  discretionary  and  the  scope   of\t the
\njurisdiction,  in  view of the decisions of this  Court,  is
\nrather\tlimited.   In the circumstances, we do not  see\t any
\njustification  to throw out this appeal on the ground,\tthat
\nthe appellant has not exhausted all his remedies.
\n On  the  merits, Mr. Viswanatha Sastry\t appearing  for\t the
\nappellant, raised before us two points : (1) under r. 83  of
\nthis  Rule  the\t jurisdiction of the  Commissioner  is\tvery
\nLimited\t in  that  he  can  only  correct  arithmetical\t and
\nclerical  mistakes  and errors apparent on the face  of\t the
\nrecord arising from an accidental slip or omis-\n<\/p>\n
102<\/span><\/p>\n
sion.  But the commissioner in the instant  case,practically
\nreheard the revision and came to a conclusion different from
\nthat, which he had arrived on the earlier occasion. (2)\t The
\nconclusions  arrived at by the Commissioner are not  correct
\nboth on law and on facts.\n<\/p>\n
Mr.   Mahajan\tcontended  that\t the  order  made   by\t the
\nCommissioner was within the scope of his jurisdiction for he
\nhad  only  reviewed  the previous order in  respect  of\t the
\namounts\t not  paid  by\tthe  appellant\tto  the\t Sales\t Tax
\nauthorities  and in respect of those amounts directed to  be
\nrepaid\tunder a misapprehension that the said  amounts\twere
\nthe  subject  matter of the appeals against  the  orders  of
\nassessment,  and  the  application in  respect\tthereof\t was
\nwithin time.\n<\/p>\n
Mr. Mahajan attempted to take us through the particulars and
\ndetails of such payments, but we did not permit him to do so
\nas nothing would turn upon the said details to show  whether
\nthe  Commissioner had jurisdiction or not in  reviewing\t his
\nown  order.  If he had not, the fact that his order was\t not
\ncorrect on facts would be quite irrelevant for the  disposal
\nof this appeal.\n<\/p>\n
\t      The  material part of r. 83 of the said  Rules
\n\t      reads
\n\t      “The  Commissioner of Sales Tax……. may  at
\n\t      any time correct any arithmetical or  clerical
\n\t      mistakes or any error apparent on the face  of
\n\t      the   record   arising  or   occurring   from.\n<\/p>\n
\t      accidental slip or omission in an order passed
\n\t      by him, or it.”\n<\/p>\n
Rule  83 provides a summary remedy within a narrow  compass.
\nThe  jurisdiction  of the Commissioner under  this  rule  is
\nlimited\t and is confined only to the correction of  mistakes
\nor omissions mentioned therein.\t An arithmetical mistake  is
\na mistake of calculation; a clerical mistake is a mistake in
\nwriting\t or  typing.  An error arising out of  or  occurring
\nfrom  an  accidental slip or omission is an error due  to  a
\ncareless mistake or omission unintentionally made.  There is
\nanother\t  qualification\t namely,  such\tan  error,shall\t  be
\napparent  on the face of the record, that is to say,  it  is
\nnot  an error which depends for its discovery, on  elaborate
\narguments on questions of fact or law.\tThe accidental\tslip
\nor  omission is an accidental slip or omission made  by\t the
\ncourt.\tThe obvious instance is a slip or omission to embody
\nin the order something which the court in fact ordered to be
\ndone..\tThis is sometimes described as a decretal order\t not
\nbeing  in  accordance with the judgment.  ‘But the  slip  or
\nomission may be attributed
\n103<\/span>
\nto  the Judge himself.\tHe may say something or omit to\t say
\nsomething which he did not intend to say or omit.  This\t ‘is
\ndescribed as a slip or omission in the judgment itself.\t The
\ncause  for  such  a  slip or omission  may  be\tthe  Judge’s
\ninadvertence or the, advocate’s mistake.  But, however\twide
\nthe said expressions are construed, they cannot\t countenance
\na  re-argument\ton merits on questions of fact\tor  law,  or
\npermit\ta  party  to raise new arguments which\the  has\t not
\nadvanced at the first instance.\t If that, was. the scope  of
\nr.  83, the question is, whether the Commissioners order  is
\nwithin its scope.\n<\/p>\n
On May 15, 1961, the Sales Tax Officer dismissed the  appli-
\ncation filed by the dealer for refund.\tThough he held\tthat
\nthe  appellant\twas entitled for refund,  he  dismissed\t the
\napplication on the around that it was signed only by one  of
\nthe directors.\tIn the appeal filed by the appellant against
\nthe said order to the Commissioner, the Commissioner by\t his
\norder  dated  May 15, 1962 came to the conclusion  that\t the
\nappellant  was\tentitled to the refund applied for  and\t the
\nSales\tTax  Officer  went  wrong  in  rejecting  the\tsaid
\napplication  for refund.  A perusal of the order shows\tthat
\nthe  Commissioner had looked into the  connected  assessment
\nrecord\tand  came  to the conclusion that, in  view  of\t the
\nSupreme\t Court judgment and the order made by the Sales\t Tax
\nTribunal, Orissa, the appellant was entitled to the  refund.
\nBut,  in his order dated September 24, 1963, he\t practically
\nre-heard the entire matter both on facts and on law and came
\nto  the conclusion that a part of the money, directed to  be
\nrefunded by his, earlier order. should not be refunded.\t  He
\nhas  dealt  with  five\titems.\t Item  (a)  relates  to\t the
\nassessment  for the quarters ending 30-9-1949 made under  S.
\n12(1) of the Act and the assessment made under S. 12(7)\t for
\nthe  quarters  ending  31-12-1949 to  31-3-50.\t He  made  a
\ndistinction  between assessments made under s. 12(1) and  S.
\n12(7)  of  the Orissa Sales Tax Act and held the  period  of
\nlimitation  would commence from the date of the orders\tmade
\nthereunder  respectively.  So holding he came to’  the\tcon-
\nclusion that the assessments under S. 12(7) were made  final
\nby November 1951; and an application for refund of ‘the said
\namounts\t covered  by  the said\tassessments  was  barred  by
\nlimitation.  In respect of assessments made under S.  12(1),
\nexcept\tin  regard to Rs. 299-1 1-0, he held the  claim\t was
\nbarred\tby  limitation.\t In regard to item (b), as it  is  a
\nclear mistake, the learned counsel for the assessee conceded
\nboth  in  the  court below and before  us  that\t the  amount
\ncovered by that item may be disallowed.\t Item (c) relates to
\nthe assessments made for the quarters
\n104<\/span>
\nending\t 31-3-52,   30-6-53,  30-9-53,13-12-53\t and   13-2-
\n1954.those assessments were set aside by the first appellate
\nauthority  by  its  order  dated  May  28,  1958.   But\t the
\nCommissioner  held  that the admitted tax  paid\t before\t the
\norders\tof assessment was not the subject matter of  appeals
\nand therefore the amount NW towards the admitted tax was not
\nrefundable.  The contention of the ass\twas   that  as\t the
\nappellate authority had set aside the entire assessment, the
\nassessee  would be entitled to a refund of the\tentire\ttax,
\nwhether paid before or after the order of assessment.
\nItem  (d) relates to the assessment for the quarters  ending
\n30-9-50 to, 31-12-51 and 30-6-52 to 31-3-53 (10 quarters ex-
\ncepting\t quarter  ending 31-3-52).  On\tthe  same  reasoning
\nadopted by the Commissioner in respect of item (c), he\theld
\nthat,  in regard to the amounts paid before the\t assessment,
\nthe  assessee was not entitled to a refund of the same.\t  On
\nbehalf\tof  the\t assessee,  it was  contended  that  as\t the
\nassessment  orders were set aside he was entitled to  refund
\nof  the\t amounts  whether paid before or  after\t the  orders
\nsetting\t aside the assessments.\t Item (e) relates to  refund
\nof taxes paid in respect of Puri 11 and Cuttack II  Circles.
\nThat part of the order was not questioned before us.
\nIt  is\ttherefore clear that the Commissioner  reviewed\t his
\nprevious  order\t which was passed on merits  mainly  on\t two
\ngrounds: (i)   that the application for refund in respect of
\ncertain amount-was  barred  by\tlimitation;  and  (ii)\t the
\nassessee was not entitled to a\t   refund  of  the   amounts
\npaid  before the assessment orders were made on\t the  ground
\nthat  the  said amounts were not the subject matter  of\t the
\nappeals\t wherein the assessments were set aside.   Both\t the
\nquestion of limitation as well as the question of  construc-
\ntion of the appellate orders and the impact of those  orders
\non the amounts paid towards tax before the assessments, were
\narguable questions of fact and law.  The Department   should
\nhave  raised the said questions before the  Commissioner  at
\nthe  time  he first made the order directing refund  of\t the
\namounts\t claimed by the assessee.  The wrong conclusion,  if
\nany,  arrived at by the Commissioner in his  earlier  order,
\nbecause\t of  the fact that the said two arguments  were\t not
\nadvanced before him, cannot be said to be errors apparent on
\nthe  face  of  the  record  arising  or\t accruing  from\t  an
\naccidental  slip  or omission.\tThe errors,  if\t any,  arose
\nbecause\t the Department did not raise those  points-  before
\nthe Commissioner.  They were also errors not apparent on the
\nface   of   the\t record\t for  the  decision   depends\tupon
\nconsideration  of  arguable  questions\tof  limitation\t and
\nconstruction of documents.  Indeed
\n105<\/span>
\nthe Commissioner re-heard arguments and came to a conclusion
\ndifferent  from\t that  which  he  arrived  on  the   earlier
\noccasion.  This is not permissible under r. 83 of the Rules.
\nIn this view, it is unnecessary to consider the argument ad-
\nvanced by Mr. Sastry that the application for refund was not
\nbarred\tby limitation as the final orders in regard  to\t the
\nassessments was made by the Tribunal only in the year 1958.
\nIn  the result, the order of the Commissioner is set  aside,
\nexcept in regard to items (b) and (e) mentioned in paragraph
\n7  of  his order.  In the circumstances, there\twill  be  no
\norder as to costs.\n<\/p>\n
Appeal allowed,
\nL9Sup.CI\/66-8
\n106<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Master Construction Co. (P) Ltd vs State Of Orissa And Another on 16 December, 1965 Equivalent citations: 1966 AIR 1047, 1966 SCR (3) 99 Author: K Subbarao Bench: Subbarao, K. PETITIONER: MASTER CONSTRUCTION CO. (P) LTD. Vs. RESPONDENT: STATE OF ORISSA AND ANOTHER DATE OF JUDGMENT: 16\/12\/1965 BENCH: SUBBARAO, K. BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-187431","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMaster Construction Co. (P) Ltd vs State Of Orissa And Another on 16 December, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/master-construction-co-p-ltd-vs-state-of-orissa-and-another-on-16-december-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Master Construction Co. 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