9911796707
TMI Blog1965 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 section 12, sub-section (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 section 12, sub-section (8) of the Act in respect of all quarters ending on and in 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 amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed. 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 Article 226 of the Constitution of India. There are no merits in this contention. Article 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 seek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 rule 83 of the said Rules reads: "The Commissioner of Sales Tax......may at any time correct any arithmetical or cleric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rule 83, the question is, whether the Commissioner's order is within its scope. On May 15, 1961, the Sales Tax Officer dismissed the application filed by the dealer for refund. Though he held that the appellant was entitled for refund, he dismissed the application on the ground 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 wen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low and before us that the amount covered by that item may be disallowed. Item (c) relates to the assessments made for the quarters ending 31st March, 1952, 30th June, 1953, 30th September, 1953, 13th December, 1953, and 13th February, 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 paid towards the admitted tax was not refundable. The contention of the assessee 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 occurring 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 the Commissioner re-heard arguments and came to a conclusion different from that which he arrived on ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
