1979 (11) TMI 230 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Whether the Tribunal was justified in law in holding that there was no error apparent on the record within the meaning of section 62 of the Bombay Sales Tax Act, 1959.
2. Whether section 52 of the Bombay Sales Tax Act, 1959, created a bar to rectification power under section 62 of the Bombay Sales Tax Act, 1959.

Issue-wise Detailed Analysis:

Issue 1: Error Apparent on the Record (Section 62)
The applicants, registered dealers under the Bombay Sales Tax Act, 1959, sought rectification of their tax assessment for the period 1st January 1965 to 31st December 1965, arguing that the engines sold were agricultural machinery taxable under entry No. 12 of Schedule C, not under the residuary entry No. 22 of Schedule E. The Sales Tax Officer rejected the rectification application, stating that no objection was raised initially, and thus it was not a "mistake apparent from the record." The Tribunal upheld this decision, stating the applicants had not proved the engines fell under entry No. 12 during the assessment proceedings. The High Court referenced the Division Bench's interpretation in Commissioner of Sales Tax v. Dharampur Leather Cloth Company Private Limited, which clarified that mistakes apparent from the record could include glaring and obvious mistakes of law or fact. The High Court concluded that since no evidence was provided during the assessment to show the engines were for agricultural purposes, the Sales Tax Officer's decision did not constitute an error apparent from the record.

Issue 2: Bar to Rectification Power (Section 52 vs. Section 62)
The Tribunal had interpreted section 52(3) to mean that if a question had been determined in proceedings under section 52, it could not be subject to rectification under section 62, suggesting the only remedy was appeal or revision. The High Court found this interpretation incorrect. Section 52(3) prevents a question already decided in other proceedings from being re-determined under section 52 but does not bar rectification under section 62. The High Court emphasized that section 52(1) bars applications to the Commissioner when the question is pending before a court or in assessment/reassessment proceedings but does not preclude using a Commissioner's determination for rectification purposes. The High Court clarified that section 62's rectification power is distinct and confined to correcting apparent mistakes in the same officer's order, not subject to the limitations of section 52.

Conclusion:
The High Court answered the first question in the affirmative, supporting the Tribunal's decision that there was no error apparent on the record. For the second question, the High Court also answered in the affirmative, indicating that section 52 does not bar rectification under section 62. Each party was ordered to bear its own costs, and the applicants were entitled to withdraw the reference fee.