1999 (10) TMI 707 - HC - VAT and Sales Tax

Summary

Issues Involved:
1. Jurisdiction and power under section 45(1) of the M.P. General Sales Tax Act, 1958.
2. Rectification of mistakes under section 45 of the State Sales Tax Act.
3. Availability of alternative remedy under section 39(5) of the State Sales Tax Act.

Issue-wise Detailed Analysis:

1. Jurisdiction and Power under Section 45(1) of the M.P. General Sales Tax Act, 1958:
The petitioner contended that the Additional Commissioner of Sales Tax lacked the jurisdiction and power to review his own order dated October 25, 1991, under section 45(1) of the State Sales Tax Act. The petitioner argued that section 45 only allows for the rectification of mistakes apparent from the record and does not permit a change of opinion or review of the merits of the case. The respondents, however, maintained that the order dated October 25, 1991, was against the provisions of law and was liable to be rectified under section 45. They cited various decisions of the Board of Revenue to support their position.

2. Rectification of Mistakes under Section 45 of the State Sales Tax Act:
The petitioner argued that the parameters of section 45 are well-defined by judicial decisions, permitting only the correction of mistakes apparent from the record. The petitioner cited several judicial precedents to support this argument, including the Supreme Court's decision in Master Construction Co. (P.) Ltd. v. State of Orissa, which held that section 45 permits the correction of only such mistakes that are apparent from the record and do not require elaborate arguments on questions of fact or law. The petitioner also relied on the Supreme Court's decision in Shree Bhagwati Roller Flour Mills v. Commissioner of Sales (Trade) Tax, which held that unless there was an error apparent on record, the Tribunal could not exercise its power of rectification.

3. Availability of Alternative Remedy under Section 39(5) of the State Sales Tax Act:
The petitioner argued that the Commissioner had an alternative remedy under section 39(5) of the State Sales Tax Act, which allows the Commissioner to file an appeal before the Tribunal if an order passed by his predecessor or any Additional Commissioner is erroneous and prejudicial to the interests of revenue. The petitioner contended that the Commissioner should have availed this remedy instead of reviewing the order under section 45. The respondents, however, relied on the Supreme Court's decision in State of Uttar Pradesh v. Modi Industries Limited, which they argued empowered the revisional authority to rectify errors under section 31(2) of the U.P. Sales Tax Act.

Conclusion:
After considering the arguments and judicial precedents cited by both parties, the court concluded that the Additional Commissioner did not have the jurisdiction to review his own order under section 45 of the State Sales Tax Act. The court held that section 45 only permits the rectification of mistakes apparent from the record and does not allow for a review on merits. The court also noted that the Commissioner had an alternative remedy under section 39(5) of the State Sales Tax Act, which he could have availed within two years from the date of the order. Consequently, the court quashed the impugned order dated March 3, 1992, and allowed the petition with no order as to costs. The security amount, if any, was ordered to be refunded to the petitioner after due verification.

Judgment:
The petition is allowed, and the impugned order dated March 3, 1992, is hereby quashed. The security amount, if any, shall be refunded to the petitioner after due verification.