TMI Blog1965 (7) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... he point involved is the same in all these cases. The petitioners are all persons carrying on business in sales of articles of food or drink sold in a hotel or restaurant. Tax was levied at the rate of 41/2 pies in the rupee under the proviso to section 3(1)(b) of the Act as against the normal rate of 3 pies in the rupee, which every dealer had to pay on his total turnover for the year. The first proviso to section 3(1)(b), as it then stood, imposed a rate of 4 1/2 pies on sales turnover of this description where the turnover was not less than Rs. 25,000. The constitutionality of such levy had been raised in several proceedings in this Court. In K.M. Goel v. State of Madras[1961] 12 S.T.C. 527., this Court affirmed the earlier decision in K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners were not diligent in enforcing their rights and that they could have moved this Court in the ordinary way by revision petitions as provided under the Sales Tax Act. It is claimed that the impugned orders of the Tribunal are quite valid and that the mistake sought to be rectified is not one apparent on the face of the record. This is the short ground upon which the remedy sought is resisted. On behalf of the petitioners, the decision of the Maharashtra High Court in Walchandnagar Industries v. Gaitonde[1962] 44 I.T.R. 260. has been cited. In that case, an assessment had been made upon the petitioner and in respect of certain dividends an additional tax had been charged under the relevant provision of the Finance Act of 1950. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f unconstitutionality brought about by lack of legislative power did not stand on a different footing from a declaration of unconstitutionality brought about by reason of the abridgement of fundamental rights. Referring to Pesikaka's caseA.I.R. 1955 S.C. 123., their Lordships held: "It was also observed that when the law-making power of a State is restricted by a written fundamental law, then any law enacted which is opposed to the fundamental law was in excess of the legislative authority and was thus a nullity. Both these declarations of unconstitutionality go to the root of the power itself and there was no real distinction between them, and they represent two aspects of want of legislative power." Dealing with post-Constitution laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, appeals were taken to the Supreme Court. What their Lordships had to consider was whether the impugned order of the High Court that the case did not involve any substantial question of law is an error apparent on the face of the record. They observe that the fact that on an earlier occasion the Court had held on an identical set of facts that a substantial question of law arose would not per se be conclusive. They also say that a review is not an appeal in disguise. They proceed: "We do not consider that this furnishes a suitable occasion for dealing with this difference exhaustively or in any great detail, but it would suffice for us to say that where without any elaborate argument one could point to the error and say 'here is a subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not within time. Rule 18 confers the power upon the assessing, appellate or revising authority or the Appellate Tribunal to rectify any mistake apparent from the record within three years from the date of any order passed by it. The date to be computed is the date of the order of the appropriate authority to whom the application has been made. When once the assessments had received a finality at the hands of the Appellate Tribunal, it is obvious that it is the Appellate Tribunal that would have to be approached for rectification of an error apparent from the record, and it is from the date of the Appellate Tribunal's order that the period of three years has to be computed. It is not denied that in these cases the assessment proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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