PRAKASHCHAND BASANTKUMAR Vs. ADDITIONAL COMMISSIONER OF SALES TAX

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner is praying for quashing the impugned review order dated March 3, 1992 (annexure F) and also the notice of demand dated May 1, 1992 (annexure G) and also praying for restoration of the order dated October 25, 1991 (annexure C) which was passed by the Additional Commissioner of Sales Tax, M. P. , Indore, following the decision of Board of Revenue dated August 27, 1990 (annexure D ).

(2.) IN short the case of the petitioner in this petition is that the petitioner has set up an oil mill at Bhikangaon which was a new industrial unit, The petitioner was exempted from payment of entry tax for the period of 5 years from the date of first purchase of oil-seeds and other raw materials for consumption in the manufacture of oil and oil-cake. The Assistant Commissioner of Sales Tax, Khargone (respondent No. 2) passed an assessment order under the Madhya Pradesh General Sales Tax Act, 1958 (for short "the State Sales Tax Act") on July 9, 1991 for the period from October 23, 1987 to November 9, 1988 (annexure B ). The petitioner had claimed a set-off of tax at the rate of 2. 5 per cent Under Section 8 (1) (a) of the State Sales Tax Act under Notification No. A-3-47-86-ST-V (2) dated January 8, 1990 on fully tax paid purchases of cotton-seeds, but the Assistant Commissioner (respondent No. 2) allowed the set-off at the rate of 2 per cent only. Being aggrieved by the said order of assessment, the petitioner filed a revision application Under Section 39 (1) of the State Sales Tax Act before the Additional Commissioner of Sales Tax, M. P. , Indore, and order was passed on October 25, 1991 in the said revision (annexure C ). The revisional authority following the decision dated August 27, 1990 of the division Bench of the Board of Revenue, Madhya Pradesh, passed in Appeal No. 134-I/ 89 in the case of Atmaram and Brothers v. Commissioner of Sales Tax, held that the petitioner was entitled to set-off of tax at the rate of 2. 5 per cent and difference of 0. 5 per cent was allowed. The case of the petitioner is that thereafter the petitioner received a notice dated January 10, 1992 issued by the Additional Commissioner of Sales Tax (respondent No. 1) purported to have been issued Under Section 45 of the State Sales Tax Act and by this notice it was proposed to rectify the allowance of set-off of tax at 2. 5 per cent instead of 2 per cent. The reply to this notice was filed on behalf of the petitioner on February 14, 1992 and in this reply it was pleaded that respondent No. 1 had no power or authority under any of the provisions of State Sales Tax Act to review his own order particularly when the order dated October 25, 1991 was passed following the decision of the Board of Revenue on the point of the rate of set-off allowable to the petitioner. It was further contended that the notice does not state any reasons for which the order dated October 25, 1991 suffered from any mistake apparent from the record. The Additional Commissioner of Sales Tax by order dated March 3, 1992 reviewed/ revised his order dated October 25, 1991 holding that the petitioner was not entitled to set-off of tax at the rate of 2. 5 per cent which was allowed to him by order dated October 25, 1991. The petitioner has filed this petition challenging the aforesaid order dated March 3, 1992 which has been passed Under Section 45 (1) (i) of the State Sales Tax Act.

(3.) IN return the contention of the respondents is that the order which was passed on October 25, 1991 was against the provisions of law and on the face of record it was liable to be rectified Under Section 45 of the State Sales Tax Act and in case of K. K. Industries, Itarsi v. Commissioner of Sales Tax, M. P. (1990) 23 VKN 290 by order dated January 2, 1990 the Board of Revenue has decided that set-off in the similar case shall be allowable at the rate of 2 per cent only and the case of Atmaram's was not applicable in the petitioner's case. On the basis of decisions of the Board of Revenue in case of National Metal Industries, Indore and Steel Febro Industries, Indore v. Commissioner of Sales Tax (1991) 12 CTJ 338 and Metalman Pipe Mfg. Co. Pvt. Ltd. , Indore v. Commissioner of Sales Tax (1991) 24 VKN 498, the Additional Commissioner rectified his order while exercising powers Under Section 45 of the State Sales Tax Act as he was empowered to rectify his order whenever there seems to be any mistake apparent from the record.