Anshuman Singh, J. - (1.) This revision under Section 11(1) of the U. P. Sales Tax Act (hereinafter referred to as the Act) has been preferred by the assessee against the judgment dated 29th October, 1986, passed by the Sales Tax Tribunal, Bareilly Bench II, Bareilly, dismissing the appeal of the assessee against the order dated 3rd September, 1984, passed by the Assistant Commissioner (Judicial) under Section 22 of the Act relating to assessment year 1975-76.
(2.) The assessee was carrying on business in foodgrains. The original assessment order was passed by the assessing authority on 11th March, 1980. The applicant feeling aggrieved by the assessment order preferred an appeal before the Assistant Commissioner (Judicial) who by his order dated 3rd February, 1981, allowed the appeal in part and reduced the turnover. The Commissioner of Sales Tax feeling aggrieved preferred a second appeal under Section 10 of the Act before the Tribunal which by an order dated 23rd October, 1982, affirmed the findings of the Assistant Commissioner (Judicial) and dismissed the appeal. After the order of the Tribunal it appears that the Commissioner of Sales Tax felt that though the Assistant Commissioner (Judicial) by his order dated 3rd February, 1981, had fixed the turnover of the assessee at more than Rs. 2 lacs per annum but he did not impose any surcharge as contemplated under the Act and consequently he moved an application purporting to be under Section 22 of the Act before the Assistant Commissioner (Judicial) for rectification of his order dated 3rd February, 1981. The said application was resisted by the assessee firstly on the ground that it was barred by time and, secondly, that since the order passed by the Assistant Commissioner (Judicial) has merged in the order of the Tribunal, rectification could not be made by the Assistant Commissioner (Judicial). The Assistant Commissioner (Judicial) rejected both the submissions and allowed the application of the Revenue by an order dated 3rd September, 1984. The applicant-assessee feeling dissatisfied against the said order preferred a second appeal before the Tribunal which dismissed the same by the impugned order.
(3.) I have heard Sri Prakash Krishna, learned counsel for the assessee, and the Standing Counsel appearing for the Commissioner of Sales Tax. Learned counsel for the assessee has not been able to substantiate his first submission that the application was barred by time. With regard to the second submission it has been strenuously urged that since the order passed by the Assistant Commissioner (Judicial) stood merged in the order passed by the Tribunal, the Assistant Commissioner (Judicial) had no jurisdiction to rectify his mistake in the order even if clerical or arithmetical under Section 22 of the Act. Before deciding the controversy it would be necessary to refer to the relevant portion of Section 22 of the Act which reads as under : 22. Rectification of mistakes.-(1) The assessing, appellate or revising authority or the Tribunal may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in its order, apparent on the record within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period : ...;