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TMI Blog1976 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... for making a fresh assessment. In pursuance of that order the Sales Tax Officer passed a fresh assessment order on 29th December, 1955. This order was again challenged in appeal and was set aside on 5th January, 1957, with a direction for passing a de novo assessment order. In between the order passed by the Sales Tax Officer dated 29th December, 1955, and the appellate order dated 5th January, 1957, one of the partners of the firm, viz., Madan Mohan, died on 7th August, 1956, so that the firm stood dissolved. Respondent Ramji Prasad Agarwal was one of the other partners of the firm. In pursuance of the order dated 5th January, 1957, the Sales Tax Officer passed another order of assessment on 27th March, 1957. An appeal was filed against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment in this section was made by the U.P. Sales Tax (Amendment and Validation) Act, 1975 (U.P. Act No. 38 of 1975). Section 25 of the Amendment Act provides: "25. Amendment of section 29.-In section 29 of the principal Act,.................. (c) after sub-section (2), the following sub-section shall be inserted and be deemed always to have been inserted, namely: '(3) Notwithstanding any judgment, decree or order of any court or authority, no refund shall be allowed of any tax or fee due under this Act on the turnover of sales or purchases or both, as the case may be, admitted by the dealer in the returns filed by him or at any stage in any proceedings under this Act.'" It is in pursuance of this newly added sub-section (3) to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective effect, the judgment pronounced is rendered "erroneous on the face of the record" and an application for review would be maintainable. A similar view was taken by the Supreme Court in M.K. Venkatachalam, Income-tax Officer v. Bombay Dyeing and Mfg. Co. Ltd.[1958] 34 I.T.R. 143 (S.C.); A.I.R. 1958 S.C. 875. It was held: "If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently Invalid and wrong by virtue of the retrospective operation of the Amendment Act. But su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Division Bench. This order had been passed in the exercise of this court's jurisdiction under article 226 of the Constitution. In Shivdeo Singh v. State of PunjabA.I.R. 1963 S C. 1909., it was held: "It is sufficient to say that there is nothing in article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it." It is settled law that a writ of mandamus is issued directing a subordinate court, tribunal or authority to do a particular thing which in law it is bound to do but is refraining from doing it. A mandamus cannot be issued directing a person to do a certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the import of rule 71 it would be inconsistent with section 29(3) in so far as it relates to refund of tax, the liability in respect of which stood admitted in the returns filed by the assessee. A statutory rule cannot enlarge the meaning of the section; if a rule goes beyond what the section contemplates, the rule must yield to the statute: see Central Bank of India v. Their Workmen[1959-60] 17 F.J.R. 57 (S.C.); [1959] 29 Comp. Cas. 367 (S.C.); A.I.R. 1960 S.C. 12. and Chandra Kumar v. District JudgeA.I.R. 1976 All. 328 (F.B.). In the result the special appeal is allowed, the judgment of the learned single Judge dated 30th July, 1963, is set aside and the writ petition is dismissed. In the circumstances of the case, the parties wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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