9911796707
TMI Blog1974 (12) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... cations Nos. 26 and 27 of 1968 decided on 30th December, 1969, that a mistake within the meaning of section 23A of the Bombay Sales Tax Act, 1946, existed in its decision dated 20th December, 1966, given in Revision Applications Nos. 144 and 145 of 1964?" The facts on which this question arises can be briefly stated as the references are being disposed of by us on a preliminary objection taken by Mr. Patel, the learned counsel for the respondent. The respondent was a registered dealer under the said Act and carried on wholesale business in crockery, lamp-wares, enamel-wares, glass-wares and so on. He was assessed by the Sales Tax Officer, B-Ward, for the periods from 1st October, 1949, to 31st March, 1951, and from 1st April, 1951, to 31s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the arguments of Mr. Patel, it may be useful to set out here some of the relevant provisions of the said Act. Section 23(1) of the said Act runs as follows: "(1) Within sixty days from the passing by the Tribunal of any order under sub-section (2) of section 21 or sub-section (1) of section 22 affecting any liability of any dealer to pay tax under this Act, such dealer or the Collector may, by application in writing accompanied where the application is made by a dealer by a fee of one hundred rupees, require the Tribunal to refer to the High Court any question of law arising out of such order, and where the Tribunal agrees it shall draw up a statement of the case and refer it to the High Court." Section 23A(1) of the said Act provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of such application draw up a statement of the case and refer it to the High Court." There is a proviso to this sub-section, which is not material for the purposes of these references. Section 33 of the Income-tax Act of 1922 provides for an appeal to the Appellate Tribunal against certain orders passed by the Appellate Assistant Commissioner and sub-section (4) of section 33 confers powers on the Appellate Tribunal to pass such orders on an appeal made to it as aforesaid as it thinks fit. Section 33A of the Income-tax Act of 1922 confers powers of revision on the Commissioner. Section 35 of the same Act deals with the right of rectification and the provisions of sub-sections (1) and (2) of that section show that the Appellate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Appellate Tribunal made under section 33(4) cannot be said to be the passing of a new order which gives a right to either party to apply to the Tribunal requiring a case to be stated referring a question or questions for the opinion of the High Court arising out of the order in which correction is made. The granting of the application for rectification and correcting the error in the order is not an order within section 33(4) nor one in respect of which section 66(1) enables a case to be stated. It has been further held in that decision that it cannot be contended that when a case has been stated by the Tribunal to the High Court containing a question, the High Court has no province other than to express its opinion and to give its answe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of section 66 of the Income-tax Act of 1922 is conditional on an application under sub-section (1) being refused by the Appellate Tribunal. This clearly presupposes that the application under sub-section (1) was otherwise a valid application. It was further held that if an application under sub-section (1) was not well-founded, in that there was no order which could properly be said to be an order under sub-section (4) of section 33, then the refusal of the Appellate Tribunal to state a case on such misconceived application on the ground that no question of law arises will not authorise the High Court, on an application under sub-section (2) of section 66, to direct the Tribunal to state a case. The jurisdiction of the Tribunal and of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der sub-section (1) thereof can be made in respect of an appellate order under section 33(4). As the express mention of one thing implies the exclusion of another, the express mention of section 33(4) implies the exclusion of section 35 of that Act. There is nothing to show that Weston, C.J., has in any way dissented from these observations. The only thing which Weston, C.J., sought to keep open was the question whether, if an order purported to be passed in rectification substantially affected the rights of the assessee, in such a case, the assessee would not be entitled to claim that the order passed in rectification was in effect a new order under section 33(4) of the Act of 1922. In the case before us, no such question as contemplated b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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