- (1.) THIS application for review against the order of a D. B. of this Court dated 25. 10. 1961 in a case arising out of the Sales Tax Act has been filed by the opposite parly. A preliminary objection has been raised by the learned Government Advocate. He has referred to sec. 17 of the Rajasthan Sales Tax Act as it stood then. His contention is that according to this Section, the period for limitation for the rectification of mistakes by the Board of Revenue is three years and since 3 years have now elapsed, no rectification can be made by the Board.
(2.) IN support of his contention, he has made a reference to M/s. Hiralal Murlidhar vs. The State (1962 RLW 402 ). IN this case, the original order was made on 17. 9. 56 and the learned Addl. Commissioner revised this order by his order dated 27. 7. 60. The question arose whether the order of 17. 9. 56 could be revised by the Addl. Commissioner dated 21. 7. 1960 in view of the Proviso (2) to sec. 14 of the Rajasthan Sales Tax Act 1954. The learned Judges of the Rajasthan High Court accepted the writ petition and quashed the order of the Addl. Commissioner Sales Tax Rajasthan, Jaipur, dated 21. 7. 1960 on the ground that under the 2nd Proviso to sec. 14, the Commissioner was debarred from revising an order which had been made three years previously. It was observed that this bar is absolute as the word 'shall' has been used in this proviso, making it incumbent on the Commissioner not to revise an order which has been made more than three years previously. It was stated that there can be no estoppel against a statute. On the strength of this authority, it is argued that the Board of Revenue has no jurisdiction for the rectification of its order after the period prescribed under sec. 17 of the Sales Tax Act. Our attention has also been drawn to the amendment subsequently made in this section whereby it has been enacted that when an application is made under this section for rectification of mistake it shall be disposed of by the authority concerned within a period of 120 days from the date of receipt thereof. A reference has also been made to the statement of objects and reasons appended to the bill introducing the Rajasthan Taxation Laws Amendment Bill 1965. It was stated therein that these measures have been proposed to tighten anti tax activities, to facilitate early recovery of taxation, to provide for speedy disposal of certain proceedings and to avoid technical objections regarding departmental representation in appeals and revisions. It is argued from these premises that the imposition of the limit of three years on the Board of Revenue to rectify its orders within a period of three years is mandatory, and since three years have now elapsed, the rectification application cannot proceed. We are asked to infer the intendment of the Legislature from the fact that the Legislature has further reduced the prescribed period for the disposal of rectification applications. In reply, it is contended by the learned counsel for the opposite party that the Rajasthan High Court authority cited by the learned Government Advocate can be easily distinguished from the present case for the simple reason that the aforesaid authority seeks to interpret the force of the proviso to sec. 14 which is couched in very explicit terms and says that the Board of Revenue "shall not revise an order which has been made more than three years previously, whereas under sec. 17, the words used are - "the Board of Revenue or the appellate authority or the assessing authority may at any time within three years on an order passed by it, on its own motion rectify any mistake apparent from the record, and shall, within the like period, rectify any such mistake which has been brought to its notice by a dealer. " His contention is that while the words under sec. 14 explicitly prohibit the Board of Revenue to revise an impugned order after three years, the words under sec. 17 do not provide such an explicit bar. They are directory. The purpose in speciiving me period is to draw the attention of the authorities concerned to draw the attention of the authorities concerned to the necessity of expeditious disposal of cases, but it does not in any manner restrict their authority to rectify a mistake of the nature referred ,to therein after the lapse of the period prescribed therein. In support of his contention, he has referred to Peoples Representation Act which also similarly prescribes a period and enjoins that an election petition shall be tried expeditiously and an endeavour shall be made to conclude the trial within six months. His argument is that on the same analogy the period prescribed in the bales lax Act under sec. 17 does not debar the court from seeking to rectify its mistake after the prescribed period, if, for some reason or the other, the matter has been prolonged and it has not been possible to dispose of the case within the prescribed period. In this connection, he has referred to the State of U. P. vs. Manbodhan Lal Skrivastava and Manbodhan Lal Srivastava vs. State of U. P. (AIR 1957 S. C 912) wherein the learned Jugdes of the Supreme Court had an occasion to examine the impact of the word. 'shall' occurring in Art. 320 (3) (c) of the Constitution. The question was whether this article conferred any rights on a public servant so that the absence of consultation or any irregularity in consultation would afford him a cause of action in a court of law, or entitle him to relief under the special powers of a High Court under Art. 226 of the Constitution or of the Supreme Court under Art. 32. The learned Judges of the Supreme Court came to the conclusion that the provisions of Art. 320 (3) (c) are not mandatory and non-compliance with those provisions does not afford a cause of action to a civil servant in a court of law. It was, further, observed that the use of the word 'shall' in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. A reference was also made to the Interpretation of Statutes by Bindra. What has been stated therein in our opinion goes conclusively to support the contention of the learned counsel for the opposite party. According to Bindra, whether statute is mandatory or directory depends on whether the thing directed to be done is of the essence of thing required, or is a mere matter of form. Accordingly, when particular provision of a statute relates to some material matter as to which compliance with the statute is a matter of convenience rather than substance, or where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, it is generally regarded as directory, unless followed by words of absolute prohibition ; and the same is true where no substantial rights depend on the statute, no injury can result from ignoring it and the purpose of the Legislature can be accomplished in a manner other than prescribed with substantially the same results. The basic test, by which to determine whether the requirement is essential or not, is to consider the consequences of the failure to follow the statute. As has been stated by Maxwell, where the prescription of a statute realties to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duties without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. (Interpretation of Statutes, XI Ed. p. 369, 380 ). Bindra further proceeds to quote Crawford in Statutory Construction at pages 529-531. According to Crawford as a general rule, a statute which regulates the manner in which public officials shall exercise the power invested in them, will be construed as directory rather than mandatory, specially where such regulation pertains to uniformity, order and convenience and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form or if nothing is stated regarding the consequences or effect of non-compliance the indication is all the stronger that it should not be considered mandatory. To quote Bindra, it is well settled that where powers or rights are granted with a direction that certain regulations or formalities shall be complied with, it is neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred. On the other hand, where a public duty is imposed and the statute requires that it shall be performed in a certain manner or within the certain time, as in the present case, such prescription may be regarded to be directory only when injustice or inconvenience to others, who have no control over those exercising the duty, would result, if such requirements were deemed essential and imperative. Applying this test to the present case, we come to the conclusion that the period laid down in Sec. 17 is of the nature of a directory provision. It it were deemed to be essential and imperative, it would subject the parties, who have no control over the authorities, to suffer the consequences of the lapses arising from the decisions of such authorities. It is obvious that if the limit of three years as prescribed in the Act then prevailing and of 120 days as prescribed in the Act now, is exceeded it will not cause any injury to the rights of the parties. For as it is, rectification is permissible only in respect of mistakes apparent from the record, which means that the remedy of rectification lies within a very narrow compass.
(3.) AS was held in 1966 Sales Tax Cases, p. 360, such a remedy may relate to an arithmetical or, a clerical mistake or an error arising out of an accidental slip or omission. Such an error would not be an error which depends for its discovery on elaborate arguments on questions of fact and law. Nor would it permit a party to raise new arguments which he has not advanced at the first instance. To deny a court to rectify its mistakes falling within such a narrow compass after the lapse of the prescribed period, would, in our opinion, amount to a travesty of justice. It may also be noted that the statute in this case does not declare what result shall follow the non-compliance therewith, nor does it contain any negative words importing a prohibition as is the case in the proviso to Sec. 14 relating to revisions. In our opinion to interpret the provisions of Sec. 17 as mandatory would be tantamount to imposing a clog on the judicial discretion of a court. While the prescription of time limit on an individual may be mandatory, so far as a court or a tribunal is concerned it must be deemed to be directory. A cue may also be had from Sec. 3 of the Limitation Act which states in unequivocal terms that subject to the provisions contained in secs. 4 to 24 thereof, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence. Now Sec. 17 of the Sales Tax Act can certainly not be so construed as to carry the rigour of Sec. 3 of the Limitation Act. It follows, therefore, that there is no substance in the preliminary objection and we hereby reject the same. Now, to turn to the merits of the rectification application. We find that while rejecting the revision petition filed by the State against the opposite party the learned Members of the D. B. remarked at the end that obtaining of an exemption certificate was not necessary in the present case because this case would fall under rule 4 (1) and not 4 (2) of the Rajasthan Sales Tax Act. Through this rectification application filed by the opposite party it is prayed that these observations of the learned D. B. which were not the subject matter of the revision and on which aspect the parties did not address the learned court, should be deemed as an error, apparent on the face of the record and be expunged. It is urged that they are in the nature of an obiter dicta. We see no reason to expunge this observation as we find that in essence they are in favour of the assessee and are in conformity with the general trend of the impugned order. The only obvious error which would call for rectification in this case is to substitute the word 'section' for the word 'rule' used by the learned Members. We order accordingly. Thus the rectification application is hereby partly accepted to this extent. . ;