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TMI Blog1976 (1) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst these orders the dealer filed appeals before the Asstt. Commr. of Sales Tax. It was one of the contentions of the appellant before the Asstt. Commissioner that clear 15 days time was not given by the notice given to the dealer by the STO and, therefore, the principles of natural justice were violated. The learned Asstt. Commissioner did not agree with that submission, and he confirmed the orders passed by the STO. Against those orders the dealer filed Second Appeal Nos. 1801 of 1807 of 1947 before the Tribunal. 3. Under s. 46(1) of the Act "No person shall collect any sum by way of tax in respect of sales of any goods on which by virtue of s. 5 no tax is payable". Admittedly, the foods in question were exempt from payment of tax under s. 5 of the Act. The collection made therefore was wrong. Sec. 37 of the Act provides about imposition of penalty for contravening certain provisions. Sub-s. (2) of that Act provides that:— "If the Commissioner in the course of any proceeding under this Act or otherwise has reason to believe that any person has become liable to a penalty or forfeiture or both penalty and forfeiture or any sum under sub-s. (1), he shall serve on such perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be earlier than 30 days and not later than 25 days from the date on which the notice under sub-s. (2) was delivered to him, and the Supreme Court held that:— "The expression" earlier than thirty days in sub-s. (3) is not to be equated to the expression "not less than thirty days". If the expression were to be "not less than so many days" both the terminal days may have to be excluded and the number of days mentioned must be clear days but the force of the words "not earlier than thirty days" is different. In other words, although 26th October has to be excluded the date on which the meeting is to be called need not be excluded provided by doing so no breach of the expression "not earlier than thirty days" is committed. The 25th November is the thirtieth day counting from the 26th October leaving out the initial day and it is not earlier than thirty days from the date on which the notice under sub-s. (2) was delivered to the District Magistrate." It has, therefore, been stated that the mistake has thus crept in the judgment of the Tribunal and that mistake is apparent from the record and therefore should be rectified. 4. Mr. Pourana, the learned advocate, on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t from the record. Here the mistake has been brought to the notice of the Tribunal. According to Mr. Marathe when such a mistake has been brought to the notice of the Tribunal the Tribunal can certainly act suo motu and correct its mistake provide, of course, that mistake is apparent from the record. Mr. Marathe has referred in that connection to the decision of the Madras High Court in the case of P. Kuttikrishna Nair vs. Income-tax appellant Tribunal, Madras Anr. 34 ITR 540 (Mad), wherein it was held that:— "Though normally only the persons interested in the result of an order made by the Tribunal should draw the attention of the Tribunal to a mistake it has made, in theory it is open to anybody to do so; but the Tribunal is not bound to act on any representation made to it unless the representation is that of the assessee. The Department to it unless the representation is that of the assessee. The Department of the authorised representative has a right to draw the attention of the Tribunal to any mistake it might have made, but the Tribunal may, if it thinks fit, ignore the representation. The Tribunal is not deprived of its jurisdiction to rectify a mistake apparent from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified. According to him the proper remedy in such a case was to file an appeal, if provided, or a reference application. Mr. Pourana has referred in that connection to the decision of the Andhra Pradesh High Court in the case of Chandaji Kubaji Co. vs. The State of Andhra (7 STC 332 (AP)), which was confirmed by the Supreme Court in 11 STC, page 451. There the facts were quite different. There the review was sought under s. 12-A(6)(a) of the Madras General Sales Tax Act on the ground that the petitioners were not able on the first occasion to place before the Tribunal the evidence to substantiate the plea of the Commissioner Agency as the documents were in Gujarati language. Mr. Pourana has also relied on the following cases :— (1) CIT, Madras vs. P.S. S. Investments (P) Ltd. 79 ITC 456) (2) Madurai Motors, Secunderabad vs. The State of Andhra Pradesh (13 STC 673) and (3) Master Construction Co. (P) Ltd. vs. The State of Orissa Ant. (17 STC 360). But there the facts are quite different. 8. He also referred to the decision of the Mysore High Court in the case of Sri Venugopalaswamy Co. vs. The State of Mysore (21 STC 86). There the question was about interpretat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectified under s. 35 as much as a mistake of fact apparent from the record". Mr. Marathe has also referred to the decision of the Supreme Court in the case of State of Maharashtra Anr. vs. Champalal Kishanlal Mohta (27 STC 116). There a petition for review of judgment has been filed by the State Contending that after the judgment of the High Court and before the appeal was heard by the Supreme Court, the Bombay Sales Tax Act, 1959, was amended by the Maharashtra Act 15 of 1967 which retrospective operation and by the amendment standing timber was included in the definition of timber. But the counsel for the State had failed to invite the attention of the Court to that Act. The review of the judgment was granted as it was claimed that the judgment suffered from an error apparent from the face of the record. It was contended by Mr. Marathe that merely because the Department had failed to invite the attention of the Tribunal to the decision of the Supreme Court, which had over ruled the judgment of the Andhra Pradesh High Court, it could not therefrom be said that there was no error apparent from the record. We have referred above as to what the point in dispute in the appeals wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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