TMI Blog1980 (10) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the order of imposition of interest as no appeal was provided against this order and filed an appeal before the Deputy Commissioner (Appeals), Jaipur, against the order imposing penalty. A learned single Member of the Board of Revenue allowed the revision by his judgment dated 30th March, 1973. It was held that the default in making payment before 5th March, 1968, was waived and rendered no benefit and accordingly the Commercial Taxes Officer was directed to pass a fresh order in accordance with the judgment. The Commercial Taxes Officer in accordance with the directions given by the Board of Revenue finally determined the amount of liability at Rs. 3,376.70. One Shri K.L. Tunwal, Assistant Commercial Taxes Officer, lodged a special appeal under section 14(4A) of the Act, before the Division Bench of the Board, against the order of the single Member of the Board dated 30th March, 1973. This special appeal was registered as Appeal No. 105 of 1976 in the routine manner. The assessee when appeared before the Board, raised two preliminary objections before the Division Bench of the Board. Out of the two preliminary objections raised by the assessee, the Board accepted the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e heard on merits. The Board accepted the application under section 17 and ordered that the appeal be restored to be heard on merits. In allowing the application, the Board placed reliance on Indl. Chemicals and Plastics' case 1974 RRD 407 and held that once the opposite party had been heard on the substance of the appeal, the objection had to be treated as waived. It further observed that before the disposal of this appeal on 31st July, 1974, Shri K.L. Tunwal had been duly empowered on 18th April, 1974. The Board further observed that it was obvious that this final dismissal was due to facts and the accepted law by the Board on the issue, arising out of the above earlier ruling of the Board not having been brought to the notice of the Division Bench. The assessee then submitted a rectification application on 6th December, 1976, in respect of the order of the Board of Revenue dated 16th October, 1976. It was contended that the Board of Revenue had already exercised the discretion in not condoning the irregularity vide its judgment dated 31st July, 1974, and thereafter the mistake could not be rectified under the provisions of section 17 of the Act. Shri K.L. Tunwal was not authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e they wanted to take a different view, the case ought to have been referred to a larger Bench. It is pointed out that the Board itself had to constitute a larger Bench of three Members to consider this point again in Khandelwal Enterprises v. Commercial Taxes Officer, Ward I, Circle B, Jaipur 1978 RRD 151, which held that the agent must be authorised in writing and the provision has been inserted for protection of the appellant himself so that no unauthorised person can present the appeal on his behalf and spoil his case. Non-presentation of the appeal by a properly authorised person is of some consequence as it rendered the presentation defective. This defect was curable and must be cured as early as possible. The Board in the above case further observed that, "however, while agreeing with the view taken by the learned referring Member, Shri D.C. Joseph, we feel it necessary to observe that the defect of presentation should be got cured before the case reaches the Bench for argument otherwise presentation of appeals by unauthorised persons would be on the increase and filing of authority at the time of argument would make a mockery of the provisions requiring authorisation in wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that the scope of section 17 of the Act is limited to correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or accruing from accidental slip or omission in an order. It does not permit a party to raise new arguments in the court to review its earlier order merely on the basis that a subsequent ruling of that court was not brought to the notice of the court when earlier order was passed. Reliance is placed on Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360 (SC), M. Haji Mohamed Ismail Sahib and Co. v. State of Madras [1970] 26 STC 73 (FB), F.P. Minocha, Income-tax Officer, Special Investigation Circle VII, Ahmedabad v. Income-tax Appellate Tribunal, Ahmedabad [1977] 106 ITR 691, Additional Commissioner of Income-tax, A.P. v. P.R.N.S. Co. [1977] 109 ITR 574, Commissioner of Income-tax, West Bengal I v. Simplex Concrete Piles (India) Pvt. Ltd. [1978] 112 ITR 812, T.S. Balaram, Income-tax Officer, Company Circle IV, Bombay v. Volkart Brothers [1971] 82 ITR 50 (SC), Nilgiris Potato Growers Co-operative Marketing Society Ltd. v. Commissioner of Income-tax, Madras II [1978] III ITR 375, Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Shri K.L. Tunwal in the rectification application and the letter of authority dated 26th October, 1973, could not be filed earlier. Mr. Mehta further submitted that the powers of this Court under article 226 are discretionary and if there was no failure of justice and no violation of the principles of natural justice or violation of any law, rule or regulation, this Court should refuse to interfere in the order passed by the court. Mr. Mehta also brought the original record to show that the letter of authorisation dated 26th October, 1973, was authentic and this Court should now take into consideration the aforesaid letter of authorisation. Reliance is placed on Gadde Venkateswara Rao v. Government of Andhra Pradesh AIR 1966 SC 828, Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar v. Raman and Raman Ltd., Kumbakonam AIR 1952 SC 192, A. M Allison v. B.L. Sen AIR 1957 SC 227, Debi Ram Sharma v. High Court of Judicature for the State of Punjab AIR 1963 Punj 46 (FB) and Gani Mohammed v. State Transport Appellate Tribunal [1976] WLN 174. We have given our careful consideration to the arguments advanced by the learned counsel for both the parties. The first point for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 1973 RRD 608 while passing the order dated 31st July, 1974, it cannot be said by any stretch of imagination that it committed any error apparent on the face of the record. The scope of section 17 of the Act is a limited one like a review and has aptly been stated by his Lordship Krishna Iyer, J., in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [1980] 45 STC 212 (SC); AIR 1980 SC 674 that a plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. The Board in our view had thus no jurisdiction to rectify its judgment dated 31st July, 1974, under the provisions of section 17 of the Act on the ground of a subsequent decision of the Board in the facts and circumstances of this case. It need not detain us for long in holding that sub-rule (d) added to rule 60 by notification dated 18th April, 1974, and an order issued in pursuance to that rule could not authorise Shri K.L. Tunwal to submit the appeal on 31st October, 1973. This provision was added on 18th April, 1974, which authorised an officer n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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