TMI Blog1967 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... upon appeal in those cases reported in State of Mysore v. Yaddalam Lakshminarasimhiah Setty Sons[1965] 16 S.T.C. 231., The State of Mysore v. Mysore Silk House[1966] 17 S.T.C. 309. and The State of Mysore v. Karnatak Coffee Company[1966] 17 S.T.C. 311. That such is the position upon merits is not disputed. The turnover was in respect of certain articles like raw wool, cardamom, sikai, coffee and areca, subjected to a single point levy of sales tax under the State Act at the purchase point except in the case of coffee where the point is sale point. Upon the facts of these cases the assessee concerned was not liable to sales tax under the State Act. Consequently, in the light of the decisions of this Court and the Supreme Court mentioned above, he could not have been made liable for tax under the Central Act either. 4.. In all these cases except those covered by Writ Petitions Nos. 1607 to 1614 of 1965 the petitioners moved the assessing authority to act under rule 38 of the Mysore Sales Tax Rules, and to rectify the assessment orders in the light of the decisions mentioned above. All the applications for rectification were rejected. 5.. Writ Petitions Nos. 1607 to 1614 of 1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yeing and Manufacturing Co. Ltd.[1958] 34 I.T.R. 143. and a decision of the Bombay High Court reported in Walchand Nagar Industries Ltd. v. Gaitonde[1962] 44 I.T.R. 260. 10.. The effect of the two decisions of the Supreme Court relied upon for the first proposition, namely, State of Madhya Pradesh v. Bhailal Bhai[1964] 15 S.T.C. 450; A.I.R. 1964 S.C. 1006. and The State of Kerala v. Aluminium Industries Ltd.[1965] 16 S.T.C. 689., is briefly the following: In cases where an assessment is struck down on the ground that the provision of the taxation law which formed the basis of the assessment is declared unconstitutional and therefore void, not only will it be proper and appropriate for the Court to issue the consequential direction for refund of tax illegally collected, but also to proceed to exercise its initial power of quashing under Article 226 even in cases where there might be what appears to be inordinate delay, accompanied, however, by circumstances which would justify a proper exercise of discretion in favour of the petitioner. In the course of discussing the manner in which the discretion could be exercised by the High Court under Article 226 of the Constitution, their L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a circumstance which could be completely ignored in deciding the merits of the prayer for the issue of the writs to get rid of the effect of the impugned assessment orders. 13.. Coming now to the second line of argument, rule 38 of the Mysore Sales Tax Rules which empowers the assessing authority, the appellate authority as well as the Sales Tax Appellate Tribunal to rectify any mistake apparent on the record, is both in effect and to a considerable extent in the choice of words similar to or in pari materia with section 35 of the Indian Income-tax Act, 1922. The applicability of the provisions of the said section 35 to cases where the assessment order becomes wrong by reason of subsequent legislation with retrospective effect is considered by the Supreme Court in the case reported in Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd.[1958] 34 I.T.R. 143. Acting under section 18A(5) of the Income-tax Act, the assessing authority had given credit for interest on advance tax to the assessee to the extent of Rs. 50,603. At the time the said order had been made it was a correct application of section 18A(5). By subsequent amendment which was given retrospective effect, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequence of a subsequent judicial pronouncement. We find it difficult to accept this argument and the distinction. In our opinion, the present case is stronger than the other case. The effect of the decision of their Lordships of the Supreme Court is that the levy of excess dividend tax was, at no time, good. The levy was invalid, and that being the true legal position, the order made by the Income-tax Officer was bad at its inception on the date it was made, and that was a mistake; to point out that mistake, no elaborate argument or debate is required, because there is the binding Supreme Court decision, clearly bringing out that mistake. The mistake, therefore, in our opinion, is a mistake apparent from the record, within the meaning of section 35 of the Act. The authorities concerned, i. e., the respondents, were therefore clearly in error in not rectifying that mistake under section 35 of the Act." 15.. The argument on behalf of the department before us has been that this statement of the principle by the Bombay High Court must be regarded as having been stated in rather wide terms and that at the highest it could be applied only to cases in which the Supreme Court's ruling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. 18.. First of the conditions for rectification under rule 38 of the Mysore Sales Tax Rules or under section 35 of the Indian Income-tax Act is that the mistake sought to be rectified must be a mistake apparent on the record. What mistakes are mistakes apparent on the record is a matter covered by several decisions of the Supreme Court and the High Courts. Although the position may not be capable of a general statement of universal application, two considerations which are considered wellestablished are that a claim that there is a mistake which is capable of being made out only upon further evidence or investigation of further facts can never be regarded as a claim that there is any mistake apparent on the face of the record, and that a mistake which cannot be made out except upon long and elaborate argument cannot ordinarily be regarded as a mistake apparent on the face of the record. Where, however, no further investigation of facts is called for and on the facts found, the principle of law declared by the Supreme Court may be straightaway applied with the consequence of rendering an existing order mistaken it would certainly be a case of mistake apparent on the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs next after the impugned assessment orders. The explanation by the petitioner for his omission to approach the officer is that it would have been idle formality to have done so, because in other similar cases in spite of the decision of the Supreme Court, as is clear from the facts discussed above, the officer had not considered the applications and had rejected them. Although this may not be a good explanation, in ordinary circumstances, we find that except in the case of W.P. No. 1608 of 1965, the orders by the assessing authority in the other three cases were all orders after the date of the decision of this Court reported in Yaddalam Lakshminarasimhiah Setty Sons v. State of Mysore[1962] 13 S.T.C. 583. , Mysore Silk House v. The State of Mysore[1962] 13 S.T.C. 597. and Karnatak Coffee Company v. Commercial Tax Officer, Davangere[1962] 13 S.T.C. 658. We do not think, therefore, that the department can with any show of reason say that the omission to make an application for rectification on the part of the petitioner can be held against him in these writ petitions. 23.. In each of these writ petitions, namely, Nos. 1608, 1609, 1612 and 1613 of 1965, also there will be an or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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