JOSHI Actg. C. J. - (1.) THIS is a reference application under section 15 (3-A) of the Rajasthan Sales Tax Act (hereinafter called the Act), praying for issuance of a direction to the Board of Revenue, Rajasthan, to state the case and refer the question of law arising out of its order dated March 7, 1977, passed in Special Appeal No. 71 of 1974.
(2.) THE facts, which are relevant for the disposal of this application, briefly stated, are that the petitioner, Commercial Taxes Officer, Special Circle II, Jaipur (hereinafter called the C. T. O.), assessed the non-petitioner Firm for the Assessment year 1964-65 by his assessment order dated January 10, 1967 and imposed tax on the implied sale of containers of edible oil which was sold by the non-petitioner dealer to the various purchasers, who had purchased the edible oil from the non-petitioner firm i. e. , non-petitioner No. 1. THE non-petitioner, being aggrieved by the assessment order dated January 10, 1967, preferred an appeal before the Deputy Commissioner (Appeals-I) Jaipur, who, on August 17, 1968, accepted the appeal and quashed the levy of sales-tax holding that there was no implied sale of the containers. After the said order of the Deputy Commissioner (Appeals-I), the State Legislature enacted the Rajasthan Sales-tax Amendment and Validation Act, 1969 (Act No. 13 of 1969 ). THEreupon the assessing authority, without taking recourse to the proceedings for rectification of the order of the Deputy Commissioner (Appeals-I), Jaipur, raised a demand for the assessment year 1964-65 on the ground that there was implied sale of containers vide his order dated August 26, 1970. THE non-petitioner No. 1, felling aggrieved by the order dated August 26, 1970 creating a demand, preferred an appeal before the Deputy Commissioner (Appeals-I), Jaipur, who, on August 27, 1972, quashed the demand raised by the assessing authority. THE assessing authority thereupon filed a revision application before the Board of Revenue, which was disposed of by Single Member of the Board on January 15, 1974. THE learned Single Member of the Board upheld the decision of the Deputy Commissioner (Appeals-I) Jaipur. THE assessing authority did not feel satisfied with the order of the Single Member and therefore filed a special appeal No. 71 of 1974 before the Board of Revenue, but the same was also rejected by the Division Bench of the Board of Revenue on March 7, 1977. An application under section 15 (1) of the Act was moved before the Board for stating the case and referring the question referred to in the application, but the Board declined to make a reference. While disposing of the appeal, the Division Bench of the Board of Revenue took note of section 5 of the Validating Act of 1969 which provided that notwithstanding anything contained in any judgment, decree or order of any court or other authority to the contrary, any assessment, re-assessment or collection of any tax in respect of sales of gunny bags and other packing materials and containers made, any action taken or thing done in relation to such assessment, re-assessment or collection under the provisions of the principal Act before the commencement of this Act, shall be deemed to be as valid and effective as if such assessment, reassessment, collection or action or thing has been made, taken or done under the principal Act as amended by this Act, and accordingly, all acts, proceedings or things done or taken by any officer of the State Government or by any other authority in connection with the assessment, reassessment or collection of such tax shall, for all purposes, be deemed to be and to have always been, done or taken in accordance with law. After noting aforesaid section 5, the Division Bench of the Board of Revenue observed that the Amending and Validating Act is retrospective in operation and it is aimed to effectuate and carry out the object for which the earlier principal Act had been enacted. According to the Division Bench, such an Amending and Validating Act to make small repair, is a permissible mode of legislation and is frequently resorted to in a fiscal enactment. It was argued by the learned Government Advocate before the Board of Revenue that the Deputy Commissioner's order dated August 17, 1968, is in accordance with law and that the assessing authority's order dated August 26, 1970, stood rectified by the Amending and Validating Act of 1969, and is, therefore, legal under section 5 (b) of the Amending and Validating Act. In reply to this contention of. the learned Deputy Government Advocate, the learned Advocate for the non- petitioner questioned the action of the assessing authority in rectifying the order of the Deputy Commissioner without following the proper procedure of law and without giving any notice in this behalf. It is pertinent here to reproduce the assessing authority's order dated August 26, 1970, as followes :- "in view of the Rajasthan Sales-tax (Amendment and Validation) Act, 1969 the tax of Rs. 1220/22 refunded on the sale of tins amounting to Rs. 20. 237/10 in pursuance of the Appeal order is now recoverable from the dealer for which a fresh demand notice may be issued. Demand notice for Rs. 1120/22 may be issued. " It may be pointed out that after the Deputy Commissioner's order dated June 17, 1968, the assessing authority's original order got merged in to the Deputy Commissioner's order and so the assessing authority was not competent in law to rectify this order by his order dated August 26, 1970. We are fortified in our conclusion by the two decisions of the Madras High Court, namely, Ceylon Thowfeck Hotel vs. State of Madras (1) and A. Haji Abdul Shukoor and Company vs. State of Madras (2 ). In Ceylon Thowfeck Hotel's case (1) (supra), it was held that the assessing authority can revise only his own orders of assessment and cannot revise the order of appellate authority or that of the revising authority as it is not within the competence of the assessing authority to revise an assessment order finalised by a higher authority. Likewise, in A. Haji Abdul Shukoor Company's (2) (Supra), it has been laid down that the power of an assessing authority i. e. Deputy Commercial Taxes Officer, cannot be exercised by the assessing authority after the order of assessment has been confirmed by the appellate authority as in such a case, original order of assessment gets merged in the order passed on appeal and thereafter the Commercial Taxes Officer has no jurisdiction to interfere with the operation of the order as confirmed on appeal. The same is the case before us. In the instant case, the assessing authority's order has been set aside by the Deputy Commissioner (Appeals) and it is no more open to the assessing authority to revise the order of the Deputy Commissioner (Appeals ). We are further strengthened in our conclusion by section 4 of the Amendment and Validation Act. By section 4 of the Amendment Validation Act section 17 of the Rajasthan Act No. 29 of 1954 was amended by adding an explanation below that section. By virtue of the Explanation, an order which was valid when it was made and subsequently rendered invalid by an amendment of the law having retrospective operation, shall, for the purpose of this section, be construed as involving a mistake apparent from the record. Indisputably, the order of the Deputy Commissioner (Appeals) was valid prior to the Amending and Validation Act was enacted, but by virtue of retrospective operation of the Amendment and Validating Act, the Deputy Commissioner's order was rendered invalid. That will obviously amount to a mistake apparent from the record. For rectification of such a mistake, the only remedy was to invoke or take recourse to section 17 of the Act. No such action has been taken for rectification of the mistake. On the other hand, the assessing authority has sought to revise the order of the superior authority, which is beyond his jurisdiction. The Board of Revenue, therefore, rightly quashed the order of the assessing authority raising the demand and there is no scope for raising any question of law from the order of the Board of Revenue dated March 7, 1977. In view of the foregoing discussion, we do not see any justification to direct the Board to state the case and refer the question as mentioned in the application under section 15 (3a) of the Rajasthan Sales Tax Act, 1954. The same is, therefore, hereby rejected. No order as to costs. .;