MOHANLAL BISHAMBHARDAYAL OF JAIPUR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE following questions have been referred to us - (1) Whether a rectification u/s 17 of Rajasthan Sales Tax Act can be made on the basis of subsequent judgment of a High Court or Supreme Court. (2) Whether second application under sec. 17 of the Rajasthan Sales Tax Act can be sustained on the same point on which previous application had been rejected by the Board. (3) Whether a mistake committed by the authorised representative of a party by not citing a ruling in existence at the time of hearing, can be a good ground for rectification under sec. 17.

(2.) THE facts leading to the reference have been stated by the Division Bench, making the reference, as follows: - "the facts of this case in brief are that the Board of Revenue had in the three revision petitions filed by the State against this applicant firm accepted the revisions on 1-3-1968 and declared that the applicant firm was liable to pay tax on the sale of tin containers of oil. THE applicant firm thereupon presented a rectification application on 2-8-1968 against this revisional order of the Board on the plea that the Hon'ble High Court of Rajasthan had in the case of M/s Ghasi Ram Mangilal vs. State decided on 13-7 68 (and reported in 1968 Tax Reporter Vol. II page 179) held that no sales-tax was leviable on such tin containers. THE Board vide its order dated 19 10-68 rejected the rectification application of the firm on the ground that the judgment of the High Court dated 18-7-68 was not in existence when the revision petitions were accepted on 1-3-68 and subsequent judgment dated 18-7-68 of the High Court could not be a good or valid ground for rectification. THE firm has again come to the Board with a fresh application for seeking rectification of the order of the Board dated 19-10-68. "

(3.) THEREFORE, when a law is amended retrospectively or declared unconstitutional invalid or void, or is interpreted to a certain effect by a binding judgment (of the Supreme Court or the State High Court), this state of the law must be deemed to be part of the record. If on the date on which rectification is sought, a mistake is apparent on this basis, rectification cannot be denied, even though the amendment of judgment may have been made or delivered subsequent to the order sought to be rectified The judgment must, of course, be such as clearly pertains to the law applicable, and the process of rectification must not involve entering into a discussion or debate regarding the scope of the judgment or its applicability etc. As observed by their Lordships of the Bombay High Court in 1967, 32 I. T. R. 350, "the mistake to be rectified must be a mistake patent on the record and not a mistake which may be discovered by a process of elucidation, argument or debate. " There may be a question whether the scope of rectification would extend to a complete reversal of the order sought to be rectified in consequence of retrospective amendment etc. The following observations of their Lordships of the Bombay High Court in 1960 LXXIII I. T. R. 282, cited by learned counsel for the assessee (para 9 above), provide a complete answer to the question - ". . . . . Power to rectify the order is to be exercised by correcting the error in the order and the correction, must, therefore, extend to the elimination of the error. What the effect of elimination of the error will be on the original order will depend upon each case. It may be that the elimination of the error may affect only a part of the order. It may also be that the error may be such as may go to the root of the order and its elimination may result in the whole order falling to the ground. "