TaxTMI 
TaxTMI 
2008 (8) TMI 865
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....inance, section 3AAAA of the U.P. Sales Tax Act was substituted with retrospective effect from April 1, 1974. The said Ordinance has been replaced by Act No. 8 of 1992. An application after commencement of the Ordinance purported to be under section 22 of the Act has been filed by the Commissioner, Trade Tax, on the allegation that the infirmity pointed out by this court in the case of Pioneer Tanneries & Glue Works [1991] 83 STC 1; [1991] UPTC 585 has been removed with retrospective effect in section 3AAAA, as the amending Act contains validation clause. The validation clause is section 17 of the Amending Act. Therefore the present application to reconsider the order dated November 13, 1991 and decide under section 22 of the Act in the light of U.P. Ordinance No. 45 of 1991 has been filed. The said application is under consideration and Shri B.K. Pandey, learned standing counsel was heard in support of the application and Shri Kunwar Saxena, the learned counsel for the dealer opposed the application. Shri Saxena, the learned counsel for the dealer proposed that he does not want to file any counter-affidavit as no factual controversy is involved and only legal issues are involved. ....
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....hority or court for review of the assessment or order and thereupon, such authority or court may review the proceeding and make such order, varying or revising the order previously made, as may be necessary to give effect to the provisions of the Principal Act as amended by this Act. (3) The assessing, appellate or revising authority as the case may be, may within a period of one year from the commencement of this section or within the period specified in section 22 of the Principal Act, whichever expires later, make any rectification in any order passed by it where such rectification becomes necessary in consequence of the amendment of the Principal Act: Provided that no rectification which has the effect of enhancing the assessment, penalty or other dues, shall be made unless the authority concerned has given notice to the dealer or person concerned of this intention to do so and has allowed him a reasonable opportunity of being heard." Sub-section (2) of section 17 provides for making of an application to any authority or court for review of the assessment or the order passed by such authorities, which has become inconsistent with the provisions of the the Principal Act....
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.... considered section 39 of the another Amending Act (U.P. Act No. 31 of 1995) which also contained a similar kind of validation clause in section 39. The Supreme Court after interpreting the validation clause involved before it, which is pari materia to the validation clause in the present case has held that from the scheme of the Amendment Act, it is clear that both the powers of review and rectification were conferred upon different authorities to modify the earlier order to give necessary effect to the provisions of the principal Act as amended by the Amendment Act. When two specific and independent powers have been conferred upon the authorities both the powers can be exercised alternatively. The Supreme Court disagreed with the interpretation put by the High Court that the orders of review or rectification should have been passed on or before March 14, and not beyond that time. The Supreme Court has held that if such an interpretation is given then the provision for review becomes totally redundant or otiose and there will be no difference between the power of review and power of rectification. In my view the above judgment of the Supreme Court is not applicable to the facts....
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.... This section gives suo motu power as well as power to rectify any mistake in any order passed by the court under the Act, apparent on the record within three years from the date of order sought to be rectified. Next it was urged that although in the heading of the application section 22 of the U.P. Sales Tax Act has been mentioned but in the prayer it has been prayed that the judgment dated November 13, 1991 be reconsidered in the light of U.P. Ordinance No. 45 of 1991. The prayer in the application being defective it should be rejected as such. However, I find no merit in the submission which is more technical in nature. It is fairly settled that merely because prayer in the application is not accurately mentioned it is always open to a court to grant an appropriate relief looking to the contents of the application. Mere mention of a wrong section will not invalidate the order if the power to pass the order can be traced to a different section. Another objection was raised by the counsel of the dealer that the application is not maintainable before this court. Reliance was placed upon section 11(8) of the U.P. Sales Tax Act. This court while allowing the revision by its jud....
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.... has determined the amount of tax, fee and penalty afresh in the light of the judgment of the High Court. Strong reliance was placed upon a judgment of this court in the case of Indo International Industries v. Commissioner, Sales Tax [1982] 50 STC 249; [1982] UPTC 390, and submitted that the High Court exercises the advisory jurisdiction. The said submission has no merit. Reliance has been placed upon paragraph 11 of the said judgment. The aforesaid authority is distinguishable on account of the fact that it was given in a different statutory set up. Earlier this court was exercising advisory jurisdiction under section 11 of the Act before the commencement of U.P. Act No. 11 of 1978. By this Act sections 11 and 11A were substituted by a new section 11. Earlier to it there used to be an Additional Judge (Revision) in place of the Tribunal under section 10 of the Act (hereinafter to referred as AJR). It was not open to the parties to come directly against the order of the AJR before this court. The AJR used to make the reference on the question of law to this court and the court used to decide the questions of law and sent its opinion to the AJR for passing confirmatory order. Th....
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....ause under section 11, even as it stands today in order to bringing the controversy to a close, so far as it relates to the amount payable by a dealer, is the one passed by the Tribunal." The above observations should be considered and understood on the context of that case, specially the controversy involved therein. The above observations were made in a different factual and legal background. The controversy involved in the present case was not at all involved therein. A Constitution Bench judgment of the Supreme Court, very recently in Padmasundra Rao v. State of Tamil Nadu [2002] 255 ITR 147 (SC); [2002] 3 JT 1 (SC) (para 9) (page 153, ITR), has observed as follows: "Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, and said Lord Morris in Herrington v. British Railways Board [1972] 2 WLR 537. Circumstantial flex....