TMI Blog1991 (8) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... een declined by the Tribunal: Whether, on the facts and in the circumstances of the case, the order of the Sales Tax Tribunal dated August 12, 1975, suffers from mistake of law apparent on record needing rectification? This Court held that the second question also arose out of the order of the Tribunal add directed the Tribunal to refer the second question as well to this Court for its opinion. Accordingly, the Tribunal referred the second question of law to this Court for its opinion vide order dated February 6, 1990. G.S.T.R. No. 64 of 1990 arises out of the second order of the Tribunal and that is how both the references, referred to above, are being disposed of by this common judgment. The following facts shall bring out the controversy giving rise to the present questions of law: M/s. P.S. Jain Motor Company (Pb) Pvt. Ltd., Jullundur (hereinafter referred to as "the assessee") deals in tractors and their parts and is a registered dealer under the Act. The assessee filed quarterly return showing gross turnover at Rs. 44,94,292.79. Deductions were allowed in respect of sales of tax-free goods and sales made to the registered dealers. The Assessing Authority, Jullundur, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on- (i) the sale of goods declared tax-free under section 6; (ii) sales to a registered dealer of goods other than sales of goods liable to tax at the first stage under sub-section (1-A), declared by him in a prescribed form as being intended for resale in the State of Punjab or sale in the course of inter-State trade or commerce or sale in the course of export of goods out of the territory of India, or of goods specified in his certificate of registration for use by him in the manufacture in Punjab of any goods, other than goods declared tax-free under section 6, for sale in Punjab, or sale in the course of inter-State trade or commerce or sale in the course of export of goods out of the territory of India and on sales to a registered dealer of containers or other materials for the packing of such goods: Provided that in case of such sales, a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtained from the prescribed authority is furnished by the dealer who sells the goods: Provided further that when such goods are used by the dealer to whom these are sold for purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al as they apply to the rectification of a mistake by the Commissioner. - (3)......................... (4).........................." The first question relates to the maintainability of the rectification application. It was argued by the learned counsel appearing for the assessee that under section 21-A(2) of the Act, the Tribunal can rectify its own order either of its own motion or rectify any such mistake which has been brought to its notice by any person affected by such order. Since the Tribunal has rectified the order on the application filed by the Assessing Authority/State of Punjab, the same being not a person affected, the order of rectification is bad in law. We do not find any substance in this submission of the counsel appearing for the assessee. The person affected would include the assessee as well as the Assessing Authority. The Assessing Authority is covered by the word "person"; as an Assessing Authority the Excise and Taxation Officer as well. Excise and Taxation Officer is affected by the nonassessment and non-recovery of the correct tax within his jurisdiction. He would, therefore, be a person affected within the meaning of section 21-A(1) of the Act at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the other three contingencies. shown at (a), (b) and (c) of the classification above, and if a dealer does not comply with the provisions of law with regard to those sales, he shall not be entitled to deduct such sales from his taxable turnover. But there is no question of imposing a purchase tax upon such dealers by virtue of the second proviso cited above. The second proviso would thus come into play and would be attracted only in respect of goods purchased for use in the manufacture in Punjab of any goods and not in respect of any other purchases." "From the above, it is clear that the second proviso to section 5(2)(a)(ii) cannot be invoked for taxing transfer of goods to a branch. I would accordingly allow this appeal and set aside the order of the lower authorities in so far as they taxed the transfer of goods to the branch at Delhi. Any refund due as a result of these orders, may be made on a separate application." In Fancy Nets and Fabrics' case [1971] 28 STC 433, this Court had taken the following view: "The object of the second proviso to section 5(2)(a)(ii) is that where certain goods liable to sales tax were not made so liable because of a declaration fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur eventualities mentioned in the section or to only one eventuality, that is, activity of 'manufacture'. No doubt, a precedent is an authority only for what it actually decides and not for what may remotely flow therefrom as held by this Court in Bata India Limited v. State of Haryana [1983] 54 STC 226. We do not find any substance in this submission of the learned counsel appearing for the assessee. This Court in Fancy Nets and Fabrics' case [1971] 28 STC 433, has given a categorical finding that second proviso to section 5(2)(a)(ii) of the Act shall be attracted to all the four eventualities referred to in the section and not to only one eventuality as held by the Tribunal in its order dated August 12, 1975. Once it be so, then the mistake of law becomes apparent on record because the order of the Tribunal is at variance with the then law laid down by this Court. The order of the Tribunal suffered from a mistake of law apparent on the record and needed to be corrected. The point in issue in this case was directly in issue in Fancy Nets and Fabrics' case [1971] 28 STC 433, and the Tribunal had committed an error by taking a view contrary to the law laid down by this Court. It may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not liable to pay the tax. The Tribunal refused to refer questions Nos. (3) and (4) to the High Court on the plea that the said questions already stand answered in favour of the assessee. The net result of these findings is that even though the assessee in law admittedly is not liable to pay the sales tax, but in fact he is being charged with the same. The prayer for rectification has been refused and his prayer for referring the questions Nos. (3) and (4) to the High Court has also been refused. The bare reading of the provisions of section 21-A would suggest that the said provisions have been enacted by the Legislature to rectify any mistake apparent on the record. This mistake can be rectified by the Tribunal on its own motion or when the matter is brought to its notice by any person affected by the said order. The mistake, which is apparent on the face of the record, was pointedly brought to the notice of the Tribunal by the assessee when a prayer was made that the orders of the Tribunal by which the appeals of the assessee had been dismissed, should be rectified or modified, but the Tribunal failed to exercise the jurisdiction vested in it by holding that the Tribunal had n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
