- (1.) M. C. AGARWAL, J. By this revision petition under section 11 of the U. P. Sales Tax Act, 1948 (hereinafter referred to as "the Act"), the Commissioner of Sales Tax, U. P. , challenges an order dated November 15, 1989 passed by the Sales Tax Tribunal, Agra, whereby it rejected an application moved under section 22 of the Act for rectification of its order dated April 16, 1987 passed in second appeal No. 1185 of 1981 for assessment year 1978-79.
(2.) I have heard Sri K. M. Sahai, learned Standing Counsel for the Commissioner and Sri Piyush Agrawal, learned counsel for the dealer-respondent. The dealer was engaged in the business of selling water pump, diesel engine and diesel engine pumping sets and had claimed exemption on the ground that these things were agricultural implements and were exempt from tax. This contention was upheld by the Tribunal vide order dated April 16, 1987 following a Full Bench judgment of this Court in Engineering Traders v. State of UP. [1973] 31 STC 456; 1973 UPTC 91 in which it was held that water pumps were agricultural implements and were exempt from tax by virtue of a notification which exempted "agricultural implements, other than those worked by human or animal power". That notification was amended by section 31 of the U. P. Sales Tax (Amendment and Validation) Act, 1975 and the aforesaid entry was substituted as "agricultural implements, other than implements worked by human or animal power and water pumps". The Tribunal has noticed the amendment and has observed that the Legislature has only included water pumps in the general machinery and not the diesel pumping sets and, therefore, the diesel pumping sets were taxable as power driven agricultural implements. Thereafter the Commissioner moved an application under section 22 of the Act contending that in some other judgment diesel pumping sets have been treated as machinery and not as agricultural implements. This application was rejected by the impugned order dated November 15, 1989 holding that the issue is debatable and the mistake, if any, was not rectifiable under section 22 of the Act.
(3.) LEARNED Standing Counsel Sri Sahai placed reliance on a judgment of the honourable Supreme Court in State of UP. v. Engineering Traders 1990 UPTC 838 in which the aforesaid Full Bench judgment of this Court (Engineering Traders v. State of Uttar Pradesh [1973] 31 STC 456) was set aside because of the retrospective amendment. The judgment shows that it related to water pumps only and diesel engine pumping sets were not the subject-matter of the decision either before the Full Bench or before the honourable Supreme Court. The Tribunal had recorded a finding that the diesel pumping sets were agricultural power driven implements and were taxable as such. This was a finding of fact and there was no mistake therein which could be said to be apparent on record. Whether it was an agricultural implements or general machinery is a debatable question of fact and, therefore, the Tribunal rightly rejected the application under section 22 of the Act. Further about two decades have passed and the proceedings relate to assessment year 1978-79 and it would not be proper to interfere after such a long time. For the above reasons, this revision petition is dismissed. Petition dismissed. .;