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TMI Blog1979 (11) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... that these engines were taxable under entry No. 12 of Schedule C to the said Act as being agricultural machinery. These were transactions of sale effected on 2nd April, 1971, and 19th April, 1971. In view of this objection raised by the purchasers, presumably because the applicants wanted to recover from them the amount of tax they will have to pay on these sales at the rates specified in the said entry No. 22, the applicants filed an application under section 52 asking the Commissioner of Sales Tax to determine the rate of tax in respect of these two transactions of sale. By his order dated 12th June, 1971, the Commissioner held with respect to these sales that they were taxable under the said entry No. 12 of Schedule C. In his order the Commissioner stated that it was the contention of the applicants that the engines which were the subject-matter of those two transactions of sale were specifically designed for agricultural purposes and were in fact sold to agriculturists. In his order he further referred to the fact that the applicants had pointed out to the Commissioner several special features of the said engines which showed that they were designed to suit the requirements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication on the ground that as no objection had been raised by the applicants to taxing the sales of these engines during the said period as falling under the residuary entry No. 22 in Schedule E, it could not be said to be a "mistake apparent from the record" within the meaning of section 62(1). This reasoning of the Sales Tax Officer is obviously incorrect. For a case to M under section 62. the mistake is to be apparent from the record.' Such a mistake would happen either because the taxing authority or the assessee committed that mistake. Therefore, whether an assessee realised what the correct position was at the time of the assessment or not cannot be decisive of the question whether there was a "mistake apparent from the record". Against this order of the Sales Tax Officer rejecting their application for rectification, the applicants went in appeal to the Assistant Commissioner of Sales Tax. The argument of the applicants before the Assistant Commissioner was that the Commissioner of Sales Tax in the above-mentioned determination proceedings under section 52 had held the sales of engines effected by the applicants to fall under entry No. 12 of Schedule C and, therefore, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x is payable in respect of any particular sale or purchase, or if tax is payable the rate thereof, the Commissioner shall make an order determining such question. (3) If any such question arises from any order already passed under this Act or any earlier law, no such question shall be entertained for determination under this section; but such question may be raised in appeal against, or by way of revision of, such order." It seems, though it does not appear in so many words in the judgment of the Tribunal, that relying upon subsection (3) of section 52, the Tribunal took the view that by reason of that sub-section if a question had been determined in proceedings under section 52 and the same question arose in some other proceedings, then that question could not form the subject-matter of rectification under section 62 but the only remedy of the party was by way of appeal or revision against the order in which such question subsequently arose, that is to say, that not only the remedy under section 52 was barred, but also the remedy by way of rectification provided for under section 62 was barred. Such an interpretation is on the face of it incorrect and unsustainable. What secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant equally could not take the benefit of a determination given by a Commissioner under section 52(1) in another proceeding for the purpose of rectifying an order which had been passed in assessment or reassessment proceedings. Mr. Chougale argued that though this was not stated in so many words, this is the necessary implication which flowed from that section. These arguments require merely to be stated in order to be rejected. What sub-section (1) of section 52 does is that it bars a person from approaching the Commissioner to get determined a question falling under any one of the five clauses of sub-section (1) when that question itself is pending before the court or in assessment or reassessment proceedings. It does not mean that when such a question has arisen in a proceeding in respect of which an application is not maintainable under section 52(1), the assessee cannot rely upon a decision given by the Commissioner under section 52 on the identical question. Section 52(3) deals with the remedy of a person to get a wrong order corrected by a higher authority either in appeal or in revision. The scope of section 62 which confers power of rectification is wholly different from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hari Sahakari Sangh Limited[1975] 35 S.T.C. 554. In that case, the court held that it was not necessary that a machinery, before it can be said to be agricultural machinery, must be exclusively designed for agricultural purposes. The court further held that oil engines commonly used by agriculturists for working pump-sets for drawing out water and sold to agriculturists for such purposes were agricultural machinery within the meaning of entry No. 12 of Schedule C to the said Act. as that entry stood prior to its amendment on 11th May, 1973. In that case, reliance was placed on behalf of the department upon a decision of another Division Bench of this High Court in Pashablai Patel and Co. (P.) Ltd. v. Collector of Sales Tax, Maharashtra State[1964] 15 S.T.C. 32., in which the court had held that a tractor was not agricultural machinery within the meaning of entry No. 9 in Schedule B of the earlier Bombay Sales Tax Act, 1953, which entry corresponded to entry No. 12 of Schedule C in the 1959 Act prior to its amendment. The court pointed out that the case of Pashabhai Patel and Co. (P.) Ltd.[1964] 15 S.T.C. 32. turned upon its own facts and in that case the evidence led therein establ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectify the order. This argument is founded upon a construction sought to be placed upon section 52 which construction we have held to be wholly untenable and fanciful. Merely because a party chooses to advance untenable or fanciful arguments it' does not mean that the matter is debatable or it involves long and elaborate arguments. It should also be borne in mind that the question of the jurisdiction to rectify an order is a wholly different question from the question whether there was actually a mistake apparent from the record. Mr. Chougale also submitted that a decision of the Commissioner given under section 62(1) of the said Act had no binding effect and the Sales Tax Officer was not bound by it. Mr. Chougale argued that under section 52(1) the Commissioner has to determine a question raised with respect to a particular transaction or in respect of a particular dealer only and, therefore, a decision given on that question cannot be held to be an authority binding on a Sales Tax Officer when a similar question arises before him with respect to another transaction or another dealer. We are unable to accept this submission of Mr. Chougale. The said Act provides for a hierarchy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a person who carries on a particular activity is not a dealer, it would not be open to a Sales Tax Officer when a case of another person who carries on the identical activity comes before him to hold that by reason of the carrying on of such activity that other person is a dealer. The decisions of the Commissioner under section 52 are published by the Government just in the same manner as judgments of High Courts and Supreme Court are published in law reports. The whole object of publishing these reports of decisions given by the Commissioner and making these decisions available in the published form to the public is for those concerned with the said Act, whether departmental authorities or dealers, to be guided in their dealings by these decisions. If the correct position were as contended for by Mr. Chougale, it would cause great confusion and uncertainty and give rise to a chaotic situation. So far as the present case is concerned, evidence was led by the applicants in the said determination proceedings to show that the engines which were the subject-matter of the transactions of sale in respect of which the said two applications under section 52 were made were engines whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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