TMI Blog1974 (10) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... atched to the State of U. P. to petitioner's Head Office at Calcutta. The railway receipts in respect of all such consignments were also received by the petitioners, who either forwarded them to the consumers in whose names they had been prepared or endorsed the receipt prepared in its favour to such consumers for whom coal had been despatched. Thereafter the consumer took delivery of coal from the railways in U. P. For the assessment year 1966-67 the petitioner filed quarterly returns dividing its turnover of coal into two categories : (1) The turnover of coal in cases where the railway receipts were prepared in the name of the consumers themselves..................Rs. 30, 07, 439. 02 P. (2) Turnover of coal in cases where the railway receipts were prepared in the name of the petitioner but he subsequently endorsed the same in favour of the consumers in the State of U. P..........Rs. 5, 59, 172.38 P. 3. The petitioner claimed that the turnover of ₹ 30, 07, 439. 02 was exempt from tax and that of ₹ 5, 59, 172. 38 could not be taxed in the State of U. P. The Sales Tax Officer, relying upon the observation made by the High Court in petitioner's own assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this submission he relied upon a decision of the Supreme Court in the case of Master Construction Co. (P) Ltd. v. State of Orissa and another, (l956) 17 STC 360, and two decisions of this Court in the cases of Concrete Spun Pipe Works v. Sales Tax Officer, Kanpur, (1969) 24 Sales Tax Cases p. 48 and Lakshmi Narain Gauri Shanker v. State of U. P. and another, (1969) 24 Sales Tax Cases p. 77. 5. In the case of Master Construction Co. the Supreme Court considered a provision similar to that of section 22 of the U. P. Sales Tax Act, as contained in rule 83 of the Orissa Sales Tax Rules, 1947 which ran thus: The Commissioner of Sales Tax...may at any time correct any arithmetical or clerical mistake or any error apparent on the face of the record arising or occurring from accidental slip or omission in an order passed by him or it, The Supreme Court held that rule 83 provides a summary remedy within a narrow campus. The jurisdiction of the Commissioner under that rule was limited and confined only to correction of mistakes or omissions mentioned therein. An arithmetical mistake would be a mistake of calculation; clerical mistake could be a mistake in writing or typing. An e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at an error apparent on the face of the record even if construed widely cannot countenance a reargument on merits on a question of fact or law or permit a party to raise a new argument which he did not advance at the first instance. So far as the two Allahabad decisions mentioned above are concerned they merely lay down that a mistake to be apparent on the face of the assessment order must be a mistake which will appear at a glance from the record and not a stage which emerges after prolonged debate on the merits of the question. 7. In the instant case we find that while making the assessment order on 27th March, 1971 and holding that petitioner's turnover amounting to ₹ 5,59,172.38 was not liable to be assessed to tax in U. P. the Sales Tax Officer relied upon a decision of this Court which, as subsequently clarified in the case of Singhal Brothers and Co. v. State and others, 1973 U. P. Tax Cases 446, did not lay down that even in the case of a registered dealer effecting a subsequent sale in the course of inter-State trade or commerce would not be liable to be taxed in the State where he is registered. Accordingly, the Sales Tax Officer applied the law laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plate obtaining of a declaration in the form prescribed for the purposes of clause (a) of sub-section (4) of section 8. The commodity dealt with by the petitioner in the present case was coal which is a commodity which has been declared as a goods of special importance in inter-State trade or commerce under section 14. In these circumstances it was neither possible for the petitioner to have obtained a declaration in the prescribed form for the purposes of section 8 (4) (a) nor did he obtain any such form. Accordingly, the proviso to section 9(1) did not apply to sale of coal and the turnover of its sale could be taxed only under the main clause of section 9(1), i. e. in the State in which the movement of the goods commenced. 10. Learned counsel contends that this aspect of the case has not been considered either in the case of Messrs. Singhal and Co. v. State, 1973 U: P. Tax Cases 466 or in any other earlier decision of this Court. The observations made by this Court in Singhal and Co.' s case in so far as they have been made with regard to sale of declared goods, require reconsideration. This precise argument was raised and repelled by us in the case of S. K. Kahan Sons an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances, making of the award, as properly understood, involved communication of the offer to the party concerned. This was the normal requirement under the law of contract and its applicability to cases of award made under the Act could not be reasonably excluded. Thus considered the date of the award could not be determined solely by reference to the time when the award was signed by the Collector or delivered by him in his office. It involved the consideration of the question as to when it was known to the party concerned either actually or constructively According to the Supreme Court the true position then would be that the literal construction of the word 'date of the award'' occurring in the relevant section could not be appropriate. Aforesaid line of reasoning adopted by the Supreme Court seem to indicate that literally construed the expression date of the award,, means the date on which the award is written or signed but in the context in which the expression has been used it may not be apt to give to that expression a literal and mingled construction. Since the award in question before the Supreme Court was in the nature of an offer it held that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights of a person becomes enforceable on the date on which it is either actually or constructively communicated to the party concerned and that the date of an administrative order would he the date on which such order becomes operative. 14. The Supreme Court then tackled the problem from yet another aspect, an aspect completely independent of the first two aspects mentioned above. It observed that while making an award the Collector made an order affecting the right of the owner of the property. The statute prescribed a period of limitation for the enforcement of a remedy by the aggrieved person In such a case the date of the order can only be the date on which it is either actually or constructively communicated to the concerned party. 15. The first line of reasoning adopted by the Supreme Court for not interpreting the expression date of the award' in the normal way and in holding that the date of the award would be the date when the award is communicated to the person concerned, cannot possibly apply in the present case, inasmuch as the rectification made by the Sales Tax Officer cannot be equated with an 'offer' as contemplated by the law of contract. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Act does not contemplate passing of an order. All that it provides is that an assessing, appellate or revising authority may at any time, within three years from the date of an order passed by him rectify any mistake apparent on the face of the record of appeal, revision, assessment or refund as the case may be. Accordingly, the section requires an action on the part of the assessing, appellate or revising authority by way of actually correcting or rectifying its record. For example if in an assessment order the name of the assessee has been misdescribed, the section does not contemplate that any order that that mistake be rectified should be made. All that it requires the Sales Tax Officer to do is to actually correct the name of the assessee in the assessment order. It is a different thing that instead of physically correcting the order, the correction is carried out in the form of an order and by making that order a part of the record. But then it would not mean that a correction made in that form becomes an order. 19. Moreover, the Sales Tax Act does not provide for a limitation for the enforcement of a remedy by a person aggrieved by rectification made under section 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that an order of dismissal does not take effect unless it is published and communicated to the officer concerned. That was a case purely of an administrative order and for the reason already mentioned a decision in respect of an administrative order cannot help the case of the petitioner. 21. In the result we are not satisfied that the petitioner has made out any case, for not construing the date on which an assessment order is rectified, in the normal way viz. as the date on which the rectification is actually made or for holding that it was made on the date on which it was either communicated or made known to the petitioner. 22. In our opinion the rectification in this case was made on 26th March, 1972 when the order for effectuating the rectification was actually written, signed and made a part of the original assessment order. For the purpose of determining the date of rectification, the face that information about it was actually communicated to the petitioner on 31-3-1974 is absolutely immaterial. The rectification having been made within three years of the original assessment order was within limitation. 23. There is yet another way of looking at the question. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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