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TMI Blog1999 (9) TMI 930X X X X Extracts X X X X X X X X Extracts X X X X ..... 25, 1990. Thereafter on learning that the site where unit of the revisionist existed fell within the jurisdiction of the Dadri Tehsil, the revisionist obtained necessary certificate from Tehsildar, Dadri Tehsil. The revisionist was entitled for exemption for a period of six years. Since the eligibility certificate was for 5 years, the revisionist filed an application the before Divisional Level Committee, Meerut, for modifying the exemption certificate granted earlier, and the Divisional Level Committee, Meerut, modified the exemption certificate by order dated April 28, 1994. Thereafter, the Commissioner of Trade Tax received a report dated August 12, 1994 said to have been submitted by Sub-divisional Magistrate, Ghaziabad, on presumption that the site of the unit of revisionist falls within Ghaziabad Tehsil, the Commissioner of Trade Tax initiated proceeding under section 4-A(3) of the Act for modification of the eligibility certificate, and ultimately modified the eligibility certificate granted by the Divisional Level Committee, Meerut. The matter went up to Tribunal which directed the Commissioner, Trade Tax, U.P., by order dated September 24, 1997, to pass an order de novo. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the maintainability of the appeal was decided by the Deputy Commissioner (Appeals), with change of opinion, the successor in the office of Deputy Commissioner (Appeals) was not justified in dismissing the appeal on the ground that the appeal was not maintainable. Sri Kesharwani, learned Standing Counsel appearing for the department, however, submits that demand notice is not an order. The appeal under section 9 of the Act was not maintainable and in any case, the Deputy Commissioner (Appeals) in exercise of powers under section 22 of the Act can correct the error committed by his predecessor and thus he was entitled to rectify the mistakes. Therefore, there is no error in the order passed by the Deputy Commissioner (Appeals) dismissing the appeal on the ground that it was not maintainable. Thus, the following two questions arise for determination in this revision: (1) Whether after considering the objections raised by the department regarding maintainability of the appeal the Deputy Commissioner (Appeals) passed an order holding that the appeal was maintainable his successor in office on the ground of change of opinion can review the order passed by his predecessor, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own motion or on the application of dealer or any other interested person rectify any mistake in any order passed by him or it under this Act apparent on the record within three years from the date of the order sought to be rectified: Provided ......................................... Provided .......................................... 6.. From bare perusal of section 22(1) of the U.P. Trade Tax Act, it is quite evident that the authority concerned or the Tribunal or the High Court may rectify any mistake in any order passed by it under the Act which is apparent on the face of record. The question of law which has once been decided, even though erroneously after lengthy arguments, and taking a wrong view of law is not an error apparent on the face of record. Such an error cannot be rectified under section 22 of the U.P. Trade Tax Act. Therefore, the submission of Sri Kesharwani that the Deputy Commissioner (Appeals) had the powers of rectifying the mistake in the present case under section 22(1) of the Act has no merit. 7.. Sri Kesharwani, then has relied upon certain decisions of the apex Court. The first decision is rendered in Raja Jagdambika Pratap Narain Singh v. Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... staken assumption in regard to the existence or continuance of a statutory provision or is contrary to another decision of the court . The authorities under the Trade Tax Act do not have powers as the Supreme Court has under article 141 of the Constitution of India. There being no provision under the U.P. Trade Tax Act to review or revise its own orders at a subsequent stage of the same proceeding, in my view, the Deputy Commissioner (Appeals), Sales Tax, was not competent to have dismissed the appeal on the ground of its non-maintainability when his predecessor in office had already decided the point in favour of the revisionist and had held that appeal was maintainable. 10.. Shri Bharat Ji Agrawal has drawn the attention of the court to the decision of this Court rendered by a Division Bench in Ram Sewak Hari Om Brick Kiln v. Sales Tax Officer, Mainpuri [1974] 33 STC 453; 1972 UPTC 670. That was a case in which the appeals were not accompanied by proof of payment of admitted tax. The appeals were registered as defective. The petitioner then filed certified copy of his application to the Sales Tax Officer for adjustment of the admitted tax. The appellate authority accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any law. It is also well-settled that such a principle is applicable to different stages of the same proceeding. In case, at an earlier stage in a proceeding the substantial question is raised by a party and is decided by the authority, in the same proceeding at a subsequent stage, the same question cannot be allowed to be raised. The reason is that there should be finality to the decisions made by an authority at an earlier stage of the proceeding. It was held by the honourable Supreme Court in Satyadhyan Ghosal v. Smt. Deorajin Debi AIR 1960 SC 941, that: Principle of res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same proceedings . It was further held that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order . On this ground also, in my view, the Deputy Commissioner (Appeals) had no au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression order is a command to do a certain thing. In Black Law Dictionary, it has been defined as follows: a mandate, precept, a command or direction authoritatively given . 13. Looked into the light of the above meaning of term order a notice of demand is a command or direction to deposit the amount of tax assessed. Rule 45 of the Rules framed under the U.P. Trade Tax Act, 1948 provides that as soon as the assessment has been made, the Trade Tax Officer shall send to the dealer a notice in form XI, together with a copy of the assessment order free of charge and the dealer shall pay tax so assessed within the time and in manner specified in the notice. Clauses 3, 4 and 5 are the form of notice as contained in form XI, relevant for the purpose, read as below: 3. This tax/balance shall be paid by you within thirty days of the receipt of this notice. 4. The tax shall be paid by you within the period mentioned above and in the manner prescribed in rule 48 failing which the amount will be recovered as if it were an arrear of land revenue and you will also be liable to prosecution under section 14 of the Act and to be dealt with under section 15-A of the Act. 5.. If t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kesharwani, learned Standing Counsel has, however, made a reference to two decisions, viz. decision in Commissioner of Sales Tax v. Dwarika Das and Co. [1980] 45 STC 352 (All.); 1980 UPTC 123 and Commissioner of Sales Tax, U.P. v. Swadeshi Cotton Mills Ltd. Kanpur [1972] 29 STC 342 (All.). On the strength of these two decisions, it is vehemently argued that notice of demand is not an order within the meaning of section 9 of the U.P. Trade Tax Act. 18.. In the case of Commissioner of Sales Tax v. Dwarika Das and Co. [1980] 45 STC 352 (All.); 1980 UPTC 123, the question before the court was whether a recovery certificate issued by the assessing authority is an order and if an appeal lies against the same. The court held that recovery certificate is neither a formal expression of a decision nor a command or mandate; as such, it cannot be considered to be an order. The analogy that it is in the nature of execution proceeding, is not applicable. 19.. In my view, the letter of request sent by the Trade Tax Officer to the Collector to realise the arrears as land revenue is not an order but only a request or information for making the recovery of amount due as arrears of land revenue a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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