- (1.) THESE two applications have been made under sec. 17 of the. Rajasthan Sales Tax Act, 1954 for the rectification of the orders passed by me on 4. 9. 1963 in exercise of the revisionary powers of the Board of Revenue.
(2.) THE applicant in both these cases had been separately assessed for different periods on the basis of best judgment assessments and subjected to penalties under sec. 16 (1) (e) of the aforesaid Act. In appeal the Deputy Commissioner upheld the assessments, but reduced the penalties. I remanded these cases on the ground that the best judgment assessments had not been mads properly but rejected the contention that no penalty could be imposed under sec. 16 (11 (e) for the relevant periods on the plea taken that the rules for the violation of which these penalties had been imposed, had no legal validity at the relevant time. However, since the amounts of penalties were relatable to the assessments, I ordered that the penalties should also be modified in the light of the revised assessments to be made after remand. It has now been urged before me that the proposition of law laid down by me with regard to the imposition of penalties was contrary to an earlier decision of a Division Bench of this Board dated 11. 7. 1963 which had not been brought to my notice, and that this was a mistake apparent on the face of record which justified a rectification. The argument that found favour with me was that the penalties in these two cases were for the violation of sec. 16 (1) (e) of the Act and not for the violation of the rules framed under the Act. The Division Bench, however, rejected the argument that a penalty imposed under sec. 16 (1) (e) does not depend on the rules but concerns the Act. This is the way the learned Division Bench interpreted the decision of the Rajasthan High Court in the case of M/s. Tulsiram Pannalal vs. State (RLW 1961 page 363 ). I had myself referred to this ruling but had interpreted it differently. Now the question is whether these circumstances constitute a mistake on my part which is so apparent from the record that it calls for a rectification under sec. 17 of the Act which is reproduced below - "17. Rectification of mistakes - The Commissioner, or the appellate authority, or the assessing authority, may, at any time within three years of any order passed by him, on his own motion, rectify any mistake apparent from the record, and shall, within the like period, rectify any such mistake which has been brought to his notice by a dealer; Provided that no such rectification shall be made, having the effect of enhancing an assessment or reducing a refund unless a notice has been given to the dealer of the intention to do so, and a reasonable opportunity has been given of being heard. " The learned Government Advocate has relied on two rulings. The first is AIR 1925 Nagpur, 266. A Division Bench of the Nagpur High Court had laid down in this case that a judgment cannot be reviewed on account of a mistake or error apparent on the face of record when the alleged mistake or error is a wrong exposition of the law, as for instance, when the judgment is passed on a precedent which has been modified by a subsequent decision. Their Lordships have further observed that there should be direct proof that the subsequent authority was not within the knowledge of the applicant. In these two cases before me, obviously the decision of the Division Bench of this Board was not within the knowledge of the applicant. Therefore, this ruling does not help the State. The second ruling is 1925 Patna, 250. In this case their Lordships of the Patna High Court held that where a decision published in the authorised law reports was not adduced, ignorance of that decision could not be allowed to be pleaded in support of an application for review. As against these two rulings, the counsel for the applicant has referred to an array of rulings. The first is AIR 1924 Madras 98. In this case, a Division Bench of the Madras High Court has held that where a question has been settled by that High Court and is ignored by a lower court, there is an error apparent on the face of the record. The next is AIR 1941 Madras 918 where it has been reaffirmed that if a clearly established legal position has been ignored by oversight it is an error apparent on the face of the record. The third case is AIR 1925 Calcutta 304 wherein a Division Bench has held that since the judgment passed on an earlier decision of that High Court had been over-ruled by the Privy Council, this could be construed to be an error apparent on the face of the record for the purpose of review of that judgment. The fourth case is AIR Madras 1915, 1068 (2 ). Here also Sastri, J. held that where a decision is on its face erroneous owing to the attention of the court not having been called to a decision of the High Court, which it was bound to follow, the Court has a discretion in such cases to grant a review. Lastly, there is AIR 1955, Supreme Court 283, which has been relied upon-by both sides. In this case their Lordships have held that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, and that the question must be left to be determined judicially on the facts of each case. They have further observed that in certain cases a satisfactory test might be whether an error is so self evident that it does not require ah examination or argument to establish it. In these two cases before me, I find that I have taken a view of the law which is radically opposite to the view taken by a Division Bench of this very court on an earlier date, which unfortunately was not brought to my notice. If I had been aware of the ruling of the Division Bench, I was bound to follow it whatever my own views might have been. It needs no argument or elaborate investigation to bring it out that my view is different from the view taken by the Division Bench earlier. The difference is radical and apparent on the face of the record. The litigants will be confused if the same court takes different views, and in particular, when a single Member decides a case on a view opposite to the view taken earlier by a Division Bench. I think these two are fit cases in which I should invoke the powers of rectification conferred by sec. 17 of the Act. I, therefore, accept these two applications, and modify my earlier orders of 4. 9. 1963 to this extent that while the applicants shall be assessed afresh after remand, they will not be subject to any penalty for the violation of sec. 16, sub-sec. (1) and cl. (e) of the Act. . ;