MASTER CONSTRUCTION CO. (P) LTD. versus STATE OF ORISSA AND ANOTHER

Citation: [1966] 3 S.C.R. 99 · Decided: 16-12-1965 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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MASTER CONSTRUCTION CO. (P) LTD. 
v. 
STA TE OF ORISSA AND ANOTHER 
December 16, 1965 
[K. SUBBA RAO, J, C. SHAH AND S. M. SIKRI, JJ.J 
Orissa Sales Tax Rules, 
1947, Rule 83-Scope of-powers of Com-
111i~·sioner in rtviewing his own orders. 
The appe11ant was a private limited company 
c_arrying on business 
mainly as building contractors in the State of Orissa. 
It was assessed to 
sales-tax under the provisions of the Orissa Sale; 
Tax Act, 1947 and 
made payments towards the tax assessed. 
Subsequently on the basis of 
the decision of thi:l Court in State of Madras v. Gannon Dunkerley &: Co. 
[19591 S.C.R. 379, the appellant filed a writ petition in the High Court 
challenging the said assessments. The High Court quashed the assess-
ments and directed refund of that portion of the tax which was not bar-
red by .limitation on the date of filing the application. The 
appellant 
thereupon filed an application before the Sales Tax Officer for refund of 
the amount payable to him in view of the said decision. 
The Sales Tax 
Officer rejected the application on the ground that iL was made by only 
one of the directors. The Commissioner of Sales Tax in a revision filed 
against the said order set aside the order of the Sales 
Tax Officer and 
held that the appellant was entitled to the refund applied for and directed 
tlt.e said officer to issue refund payment orders as early as possible. Sub-
sequently the Commissioner issued a notice to the appellant under 'f. 83 
of the Orissa Sales Tax Rules, 1947 calling upon it to show cause why 
the order earlier passed by him should not be reviewed. 
The Commis-
sioner then reviewed his previous orders 
and held that 
the 
appellant 
would be entitled to refund of the taxes paid subject to the disallowances 
made in his order. The appellant appealed to this Court by special leave. 
The question for consideration was whether the Commissioner's Order 
in review was a proper order under r. 83. 
HELD : Rule 83 provides a summary remedy within a narrow com-
pass. 
The jurisdiction of the Commissioner under this rule is a limited 
one and is confined only to the correction of arithmetical or clerical mis-
takes or errors apparent on the face of the tecord arising or occurring 
from accidental slip or omission in an order passed by him. 
However 
widely the said expressions are construed they cannot countenance a re-
argument on merits on quw.tions of fact or law, or 
permit a party to 
:raise new arguments which he has. not advanced in 
the first 
instance. 
f102 F; 103 B] 
In the present ca'Se the Commissioner 
reversed his previous order 
which was passed on merits mainly on two grounds : (i) that the appli-
cation for refund in "respect of certain amounts was barred by limitation; 
and (ii) the assessee was not entitled to a refund of the amounts paid 
before the assessment orders were 
made on the grounds that the said 
amounts were not the subject matter of the appeals wherein the assess-
ments were set aside. 
Both the- question of 
limitation as well as the 
question of construction of the appellate orders and the impact of those 
orders on the amounts paid towards tax before the assessments- were 
arguable questions of fact and law. 
The Department should have raised 
the said questions before the Commissioner at the time he first made the 
100 
- SUPREME COU' 
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·•,_.~"'.'«----(1966] 3 !!.C.R .. 
order directing refund ·of the -amounts· : 1 
:. ~ 
·-
·!he a!se!!ee. 
The 
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wrong conclusion if any arrived at by the C.Omm.iss1oner 
in his· earlier 
order, because of the fact that the said two arguments were not advanced 
before him. cannot be said to be error on the face of the record arising 
or accruing from an accidental slip or omission. The errors if any aroae 
because the Department did not ·raise those points before the Commis-
sioner. They Y..'ere also errors not apparent on 
the face of the record 
for the decision depended upon consideration of arguable questioM of 
limitation and construction of documents. Indeed the Commissioner re-
B · 
heard the argument and came to a conclusion different from that. which 
he arrived at on the earlier_ occasion. That is not permissible under 
r. 83 of the Rules. (104 B-105 Al 
CIVIL APpELLATE JURISDICTION: Civil Appeal. No. 92 • of 
1965. 
Appeal by s~ial leave from the order dated September 24, 
1963 of the Commissioner of Sales Tax, Orissa, at.Cuttack made 
under Rule 83 of the Orissa Sales Tax Ru

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