STATE OF GUJARAT Vs. AJAY TRADING COMPANY

JUDGEMENT

(1.) THIS reference is at the instance of the Revenue and it relates to the assessment period commencing from April 1, 1974 to March 31, 1975. The assessee is engaged in the business of selling sweets, biscuits, toffees, chocolates, peppermints, etc. The assessee is registered as dealer under the appropriate pervasions of the Gujarat Sales Tax Act, 1969.

(2.) DURING the assessment period the assessee effected sales of sweets, toffees, etc. , worth Rs. 23,18,223 and calculated the tax on those sales as taxable under entry 50 of Schedule II, Part A to the Gujarat Sales Tax Act, 1969. The Sales Tax Officer calculated the tax on these sales at the rate of 8 per cent although the rate prescribed was 7 per cent. After the Sales Tax Officer passed order dated August 2, 1976, the assessee filed application for rectification of the mistake. The Sales Tax Officer rejected the application on the ground that rectification of the mistake was a question of law and not of facts. Therefore it did not fall within the scope of section 72 of the Act. The assessee preferred appeal before the Assistant Commissioner, who also confirmed the decision of the Sales Tax Officer. The assessee preferred second appeal before the Tribunal. The Tribunal, as per its judgment and order dated January 22, 1981, held that it was a case of mistake of fact apparent on the record and the same was required to be rectified. The Tribunal also negatived the contention of the Revenue that the articles of sales were covered by residuary entry No. 13 of Schedule III of the Act.

(3.) FOR the aforesaid reasons we answer the question in affirmative, in favour of the assessee and against the Revenue. The reference is answered accordingly with no order as to costs.