TMI Blog2003 (11) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... exempt from the payment of sales tax. The point of levy of tax was the first sale. When the assessee resold the goods, it claimed that it was not liable to pay tax as it was a second sale. The assessing officer however proceeded to levy tax rejecting the plea that it was a second sale. The assessment for the year 1992-93 was made on 10-1-1994. 3.The Sales Tax Act was amended with effect from 17-7-1996. The amended Section 3 of the Act provides for levy of sales tax on the second sale, if the first sale has not suffered tax for any reason in cases where the point of levy is the first sale. The amendment did not cover the assessment year 1992-93. 4.The Supreme Court in the case of Shanmuga Traders, etc. v. State of Tamil Nadu and Others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the payment was under a mistake, such mistake having been discovered after the superior Courts held in favour of the assessee, in a judgment rendered subsequent to the payment of the tax, even when the party claiming refund was not a party to that subsequent judgment. The learned Judge who spoke for the majority in that case observed that there was no provision in the Central Excise Act for reopening the concluded proceedings on the basis of a judgment subsequently rendered in the case of another assessee. The Court held that Art. 265 would not enable an assessee to claim refund on the ground of the payment having been made under a mistake. The discussion in that paragrph concluded thus :- "We are, therefore, of the clear and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or Courts. 10.Learned Counsel for the assessee rightly brought to our attention the decision of the Supreme Court, which dealt with a case of rectification. In the case of S.A.L. Narayana Row v. Commissioner of Income Tax, Bombay City and Another [64 ITR 67], a three Judge Bench of the Supreme Court held that an assessee under the Income-tax Act, who had paid tax for the assessment year 1952-53, pursuant to an assessment order made on 27-7-1955, a additional tax on the excess dividend declared by it, could maintain a petition for rectification on the strength of the decision rendered by the Court subsequently, holding that the levy of such additional tax on excess dividend was illegal. It affirmed the judgment of the High Court, which had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished by construing the words of a section to find its proper meaning then such an error cannot normally be a rectifiable error under Section 36. If two views are possible, then obviously the error will not be an error apparent from the record. It is, however, well-settled that if the Supreme Court has construed the meaning of a section, then any decision to the contrary given by any other authority must be held to be erroneous and such error must be treated as an error apparent on the record." 13.It is, therefore, clear that notwithstandings what may have been done by any other authority below the Supreme Court, when the Supreme Court pronounces on the true position of law any decision rendered by any other authority contrary to tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Trading Company [67 STC 148]) the decision of the Supreme Court in the case of Narayana Row [64 ITR 67] was referred to, the crucial fact that decision dealt with an application for rectification was omitted to be noticed. 16.The decisions of this Court reported in [67 STC 148] and [56 STC 82] must be held to have been impliedly overruled by the decision of the Supreme Court in the case of Poothundu plantations Pvt. Ltd. v. Agricultural Income Tax Officer and Others [221 ITR 557] besides not being in accordance with the law declared in the case of Narayan Row. 17.The impugned order of the Tribunal and other authorities, therefore, cannot be sustained. The application for rectification filed by the petitioner shall stand allowed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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