9911796707
TMI Blog1982 (2) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly passed rectification orders under section 22 in respect of assessment years in which the period of three years had not expired and for other years he passed orders under rule 41, sub-rule(8). The result of these orders was to create a demand on the petitioners for payment of tax in respect of amounts which according to the Sales Tax Officer had not been deposited in the treasury. The petitioners have challenged these orders passed under section 22 and rule 41(8) of the Act by these petitions. On behalf of the department it is averred that the petitioners were given wrong credits for some amounts on the basis of fake treasury chalans and in fact the amounts had not been deposited by them in the treasury. In paragraph 5 of the counter-affidavit of Munsi Ram, Sales Tax Officer (in W.P. No. 191 of 1980), it is averred that a daily collection register is maintained in the office of the Sales Tax Officer. The entries in the register are made not on the basis of the treasury chalans submitted by the dealer at the time of filing of the return or subsequently thereafter, but on the basis of the departmental copy of the chalan received from the treasury which also contains a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the Sales Tax Officer had jurisdiction to initiate proceedings under section 22 of the Act and to pass order under rule 41(8) read with section 8(8). We will refrain from expressing any opinion on the correctness of the orders for reasons to be set out later. Section 22 of the Act empowers the assessing, appellate or revising authority or the Tribunal on its own motion or on the application of a dealer or any other interested person to rectify any mistake in its order apparent on the record. This power, however, has to be exercised within a period of three years from the date of the order sought to be rectified. The word "record" has not been defined in the Act. Section 22 of the Act is in pari materia with section 35 of the Income-tax Act. In Mahendra Mills Ltd. v. P.B. Desai, Appellate Assistant Commissioner of Income-tax [1975] 99 ITR 135 (SC) the Supreme Court while interpreting the meaning of the words "record of the appeal" held that the record means not only the order of assessment but the whole evidence and the law applicable. Thus, the Sales Tax Officer, for purposes of finding out a mistake, can look into not only the assessment order passed by him, but the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alable under section 9. It is not necessary for us, however, in this case to express any final opinion in the matter, for assuming that the impugned orders are not orders as contemplated by the Act as has been contended for by the counsel for the petitioner, the petitioner can challenge those orders by way of a civil suit, for if they are not orders as contemplated by the Act, the bar of section 17 of the Act as respects suits would not be operative. Since it is not possible for us to decide fairly as to whether the amounts in question have been paid or not, and as there is a serious dispute on facts we think that the appropriate remedy for the petitioners would be either by filing a suit or by filing an appeal under section 9 for challenging the orders. The counsel for the petitioners urged that as the petitions have been admitted the petitions should not be thrown out on the ground of an alternative remedy at the stage of final hearing. In support of this contention he has relied upon the decision of the Supreme Court in the case of L. Hirday Narain v. Incometax Officer, Bareilly AIR 1971 SC 33. In this case it was held that where a petitioner had filed a writ petition instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 7 talks of determination of turnover and assessment of tax. Section 7(2) and (3) requires the Sales Tax Officer to determine the turnover and assess the tax on it. Rule 41(5), (6) and (7) also requires the Sales Tax Officer to do the same. Thus, so far as the Act and the Rules are concerned all that they require the Sales Tax Officer to do is to determine the turnover and assess the tax thereon. After this has been done, rule 41(8) comes into operation and in case there is a difference from the total amount of the tax deposited, the difference is realised from the dealer or refunded. Rule 45 contemplates a notice of demand being sent to a dealer in form XI after the assessment has been made, and in this notice which is sent in form XI the amount of tax which according to the Sales Tax Officer is due from the dealer has to be mentioned. It will thus be seen that it is not necessary for the Sales Tax Officer to mention in the assessment order the amount of tax deposited by the dealer and to calculate the amount of tax due after deducting the amount of tax deposited from the amount assessed. The Act and the Rules, however, do not contain any bar to his doing so, but the validit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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