Delhi High Court
Balsara Hygiene Products Ltd. vs Commissioner Of Sales Tax And ... on 26 February, 1991
Bench: B Kirpal, S Duggal
JUDGMENT
1. Rule D. B.
2. Under section 49 of the Delhi Sales Tax Act, 1975, an application was filed before the Commissioner for adjudication of a question of law as to whether the preparation of odomos manufactured by the petitioner was a drug or medicine or a pharmaceutical preparation. If it was one of these then the rate would be 5 per cent and if not the rate would be 7 per cent.
3. By order dated November, 6, 1985, the Commissioner held that odomos could be subjected to tax only at the rate of 7 per cent as it was neither of the three items.
4. An appeal was filed before the Sales Tax Tribunal. On January 14, 1988, the judgment of the Commissioner was upheld and the appeal was dismissed.
5. The petitioner thereafter filed a review application before the Appellate Tribunal. It was, inter alia, contended that in the original order dated January 14, 1988, the Tribunal had observed as follows :
"It has not been even contended before us that it is a pharmaceutical preparation."
6. The contention of the petitioner was that the petitioner had, in fact, raised this contention and, therefore, the said observation of the Tribunal was incorrect. By order dated May 13, 1988, the application for review was allowed. The paragraph 19 of the original judgment dated January 14, 1988 was ordered to be substituted by the following words :
"There is no force in this contention of the learned counsel for the applicant that it is a pharmaceutical preparation."
7. The petitioner had filed an application under section 45(1) before the Tribunal on June 2, 1988. It also filed a special leave petition under article 136 to the Supreme Court. This special leave petition was dismissed as withdrawn. In the meantime, on November 16, 1988, the application under section 45(1) was dismissed on the ground that it was barred by limitation.
8. Apart from the order of January 14, 1988 the challenge is also to the order of November 16, 1988 whereby the application of the petitioner was dismissed on the ground of limitation.
9. In our opinion, the application under section 45(1) was not barred by time. It will be seen that the order of January 14, 1988, was reviewed by the Tribunal, vide order dated May 13, 1988. Learned counsel for the petitioner has drawn our attention to the judgment of the Supreme Court in the case of Kundan Lal Srikishan v. Commissioner of Sales Tax . In that case the question arose whether the limitation would be counted with effect from the date of the original order of assessment or it would be reckoned from [the date when the order of assessment was rectified]. The Supreme Court held, after referring to its earlier decisions, that limitation has to be counted with effect from the date on which the [rectification order] was passed.
10. In our opinion, the aforesaid principles would be attracted to the present case as well. An order of review is somewhat akin to an order of rectification. In the present case there was a mistake which had occurred in the order of January 14, 1988. This mistake was corrected by the order dated May 13, 1988. It is on the final order as corrected on May 13, 1988 that a question of law could be raised. It is pertinent to note that the correction was material. Originally in the order of January 14, 1988 it had been held that a particular contention had not been raised. If this correction had not been made the petitioner could not have sought a question with regard thereto because if a contention is not raised not dealt with then a question of law does not arise. Realizing this difficulty the petitioner filed an application for rectification and an appropriate order was passed rectifying the mistake. It is only thereafter that an application under section 45(1) could be filed. In our opinion, therefore, the period of limitation should have been counted with effect from May 13, 1988. If this is so then it is not in dispute that the application was within time. As the petitioner's application under section 45(1) has been dismissed only on the ground of limitation and as we are not in agreement with the finding of the Tribunal that the application is barred by time we, therefore, issue a writ of certiorari quashing the order dated November 16, 1988 and direct the Tribunal to hear the application of the petitioner under section 45(1) on merits Petition is disposed of.
11. Petitioner to appear before that Tribunal for further orders on March 11, 1991.
12. Petition disposed of accordingly.
