SHIV SHYAM SALES ENTERPRISES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The petitioner a Partnership Firm dealing in Gas Hot Plates as importer and retailer has filed this Writ Petition under Article 226 of the Constitution of India, questioning the orders dated 17th January, 1989 passed by the respondent no.2 Assistant Commissioner of Sales Tax (Administration I), Nagpur Division, Nagpur whereby the said authority has upheld the tax liability of the petitioner for two different periods and has set aside the orders under Section 62 of the Bombay Sales Tax Act passed on 5th August 1988, directing refund of the tax amount already paid by the petitioner.

(2.) The petitioner states that the establishment of petitioner is registered under the Bombay Sales Tax Act, and also under the Central Sales Tax Act, and he has been filing return regularly. He has filed return for the period 25.10.1984 to 21.11.1985 and, it is the case of the petitioner that he is not liable to pay sales tax on sale of gas hot plates being purchased from out of Maharashtra, because he was exempted from payment of the same vide notification issued under section 41, particularly entry no. 164[1][v]. The said contention was rejected by the Sales Tax Officer and he was held liable to pay tax @ 8%. Accordingly the petitioner paid an amount of Rs. 1,57,540/- for the said period. The petitioner also filed second return for the period from 13.11.1985 to 02.11.1986 and his total tax liability for the said period was assessed at Rs. 4,58,762/-. The petitioner accordingly paid the said amount also. The petitioner thereafter moved an application under section 62 of the Bombay Sales Tax Act and sought rectification of the mistake in both the orders on the ground that the sale of hot plates/gas stoves was exempted from payment of tax. He relied upon the above mentioned entry and also upon the judgment of the Additional Commissioner of Sales Tax, Pune in the case of M/s. Universal Trading Company. This contention of the petitioner was accepted by the respondent no.3 Sales Tax Officer who held that, the petitioner could not have been taxed at all and therefore ordered refund. Before the petitioner could receive this refund he received notices from the respondent no.2 in Form No.40 along with the gist of the orders, and, petitioner learnt that the respondent no.2 was intending to revise the said orders passed under section 62, in exercise of powers under section 57 of the Sales Tax Act. The petitioner therefore, raised some objections and ultimately filed his reply to those notices. He thereafter also filed his written statement, which is practically in the shape of Written Notes of Arguments and, also raised preliminary objection to exercise of revisional jurisdictional by the respondent no.2 in the matter. The respondent no.2 after hearing the counsel for the petitioner ultimately passed the impugned order on 17th January 1989. There were two returns filed by the petitioner and, therefore, two separate orders have been passed by the respondent no.2 on the same date. Both these orders are questioned in the present petition.

(3.) Mr. Arun Agarwal, the learned Counsel for the Petitioner has contended that the entry upon which the respondent no.2 has relied upon in his order dated 17th January 1989 had been amended later on in July 1988 and as per the said amendment the original entry no. 164[1][v] had been modified retrospectively. He states that the entry as it stood originally from 01.09.1981 exempted Air/Gas/Fluid Heating Systems from payment of sales tax. He further argued that by amendment what has been exempted is Solar Air heating system and solar gas heating system or solar fluid heating system. He contends that thus the words solar has been added later on retrospectively and therefore, the orders passed under section 62 were just and proper. He contends that as per the original entry the mistake apparent on the fact of record which has been rectified by the sales tax officer and it is in exercise of jurisdiction under section 62 of the Act. He further contends that the Sales Tax Officer in this respect relied upon the order of the Additional Commissioner of Sales Tax, Pune passed in identical situation in case of M/s. Universal Trading Corporation and the said Authority namely the Additional Commissioner of Sales Tax, Pune has also found that the sale of Gas Stove was also exempted as per the original entry. He contends that the Sales Tax Officer has in view of these two circumstances exercised the jurisdiction under section 62. and there is no error in the said order. He further argues that the reasons put forth by the respondent no.2 to reverse the said order are unsustainable. He contends that one of the reason put forth by the Additional Commissioner of Sales Tax is that the orders has been passed beyond the period of 2 years from the original order. He contends that Section 62 only contemplates initiation of the proceedings therein within a period of two years. He points out that the original order in this respect was passed on 24.07.1986 and the application for correction was moved on 21.07.1988. As the application was moved within a period of two years according to him the passing of the orders subsequently i.e. on 5.8.1988 is of no consequence. He states that the revisional authority was therefore in error in holding that the cognizance of the orders passed by the Sales Tax Officer was itself without jurisdiction.