Appeal No 92 of 1965
Appeal by special leave from the order dated September 24 1963 of the Commissioner of Sales Tax Orissa at Cuttack made under Rule 83 of the Orissa Sales Tax Rules 1947
A V Viswanatha Sastry and B P Maheshwari for the appellant
V D Mahajan and R N Sachthey for the respondent
The judgment of the court was delivered by Subba Rao J
This appeal by special leave raises the scope of the jurisdiction of the Commissioner of Sales Tax under Rule 83 of the Orissa Sales Tax Rules 1947
The facts may be briefly stated
The appellant is a private limited company carrying on business mainly as building contractors in the State of Orissa
He was a registered dealer under the provisions of the Orissa Sales Tax Act 1947 hereinafter called the Act
He was assessed to sales tax under section 12 sub section
4 of the Act in respect of all quarters ending on and in between June 30 1949 to March 31 1954
He was also assessed to sales tax under so 12 sub section
8 of the Act in respect of an quarters ending on and between the dates September 30 1949 to March 31 1950
Towards the said assessments between December 6 1950 to June 1954 he paid by way of sales tax sums amounting to Rs 53220 14 0
On August 27 1954 on the basis of the decision of the Supreme Court in the case of State of Madras vs Gannon Dunkerley  Co1 the appellant filed a petition in the High Court of Orissa under article 226 of the Constitution of India for a writ of certiorari to quash the said assessments
On April 22 1958 the said High Court quashed the said assessments and directed refund of that portion of the tax which was not barred 1 101 by limitation on the date of the filing of the said application On July 9 1958 the appellant filed an application before the Sales Tax Officer for the refund of the amounts payable to him in view of the said decision
On May 15 1961 the Sales Tax Officer while holding that the appellant was entitled to the refund of the amounts paid by him rejected his application on the ground that it was filed only by one of the directors whereas it should have been filed jointly by all the parties
On May 15 1962 the Commissioner of Sales Tax respondent No 2 in this appeal in a revision filed against the said order set aside the order of the Sales Tax Officer and held that the appellant was entitled to the refund applied for and directed the said Officer to issue refund payment orders as early as possible
On January 5 1963 the sad Commissioner issued a notice to the appellant under r 83 of the said Rules calling upon him to show cause why the order dated May 15 1962 should not be reviewed
On September 24 1963 the said Commissioner reviewed his previous order and held that the appellant would be entitled to refund of the taxes paid subject to the disallowances made in his order
Hence the present appeal
Mr Mahajan the learned counsel for the respondents raised a preliminary objection to the maintainability of the appeal on the ground that the appellant could not file the appeal unless it had exhausted the remedy under article 226 of the Constitution of India
There are no merits in this contention
article 136 confers a discretionary appellate jurisdiction on this Court against any order passed by any Tribunal in the territory of India
The said jurisdiction is not subject to any condition that the party who seeks special leave of this Court to appeal from such order should exhaust all his other remedies
The existence of a statutory remedy to such a party may persuade this Court not to give leave to appeal to the party
In the present case the Act does not provide for a further remedy against the order made by the Commissioner in revision
Under article 226 of the Constitution of India the High Court s jurisdiction is discretionary and the scope of the jurisdiction in view of the decisions of this Court is rather limited
In the circumstances we do not see any justification to throw out this appeal on the ground that the appellant has not exhausted all his remedies
On the merits Mr Viswanatha Sastry appearing for the appellant raised before us two points  1 under r 83 of this Rule the jurisdiction of the Commissioner is very Limited in that he can only correct arithmetical and clerical mistakes and errors apparent on the face of the record arising from an accidental slip or omis 102 sion
But the commissioner in the instant casepractically reheard the revision and came to a conclusion different from that which he had arrived on the earlier occasion
2 The conclusions arrived at by the Commissioner are not correct both on law and on facts
Mr Mahajan contended that the order made by the Commissioner was within the scope of his jurisdiction for he had only reviewed the previous order in respect of the amounts not paid by the appellant to the Sales Tax authorities and in respect of those amounts directed to be repaid under a misapprehension that the said amounts were the subject matter of the appeals against the orders of assessment and the application in respect thereof was within time
Mr Mahajan attempted to take us through the particulars and details of such payments but we did not permit him to do so as nothing would turn upon the said details to show whether the Commissioner had jurisdiction or not in reviewing his own order
If he had not the fact that his order was not correct on facts would be quite irrelevant for the disposal of this appeal
The material part of r 83 of the said Rules reads The Commissioner of Sales Tax  may at any time correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or occurring from
accidental slip or omission in an order passed by him or it
 Rule 83 provides a summary remedy within a narrow compass
The jurisdiction of the Commissioner under this rule is limited and is confined only to the correction of mistakes or omissions mentioned therein
An arithmetical mistake is a mistake of calculation a clerical mistake is a mistake in writing or typing
An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made
There is another qualification namely such an errorshall be apparent on the face of the record that is to say it is not an error which depends for its discovery on elaborate arguments on questions of fact or law
The accidental slip or omission is an accidental slip or omission made by the court
The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done
This is sometimes described as a decretal order not being in accordance with the judgment But the slip or omission may be attributed 103 to the Judge himself
He may say something or omit to say something which he did not intend to say or omit
This is described as a slip or omission in the judgment itself
The cause for such a slip or omission may be the Judge s inadvertence or the advocate s mistake
But however wide the said expressions are construed they cannot countenance a re argument on merits on questions of fact or law or permit a party to raise new arguments which he has not advanced at the first instance
If that was
the scope of r 83 the question is whether the Commissioners order is within its scope
On May 15 1961 the Sales Tax Officer dismissed the appli cation filed by the dealer for refund
Though he held that the appellant was entitled for refund he dismissed the application on the around that it was signed only by one of the directors
In the appeal filed by the appellant against the said order to the Commissioner the Commissioner by his order dated May 15 1962 came to the conclusion that the appellant was entitled to the refund applied for and the Sales Tax Officer went wrong in rejecting the said application for refund
A perusal of the order shows that the Commissioner had looked into the connected assessment record and came to the conclusion that in view of the Supreme Court judgment and the order made by the Sales Tax Tribunal Orissa the appellant was entitled to the refund
But in his order dated September 24 1963 he practically re heard the entire matter both on facts and on law and came to the conclusion that a part of the money directed to be refunded by his earlier order
should not be refunded
He has dealt with five items
Item a relates to the assessment for the quarters ending 30 9 1949 made under section 121 of the Act and the assessment made under section 127 for the quarters ending 31 12 1949 to 31 3 50
He made a distinction between assessments made under section 121 and section 127 of the Orissa Sales Tax Act and held the period of limitation would commence from the date of the orders made thereunder respectively
So holding he came to  the con clusion that the assessments under section 127 were made final by November 1951 and an application for refund of the said amounts covered by the said assessments was barred by limitation
In respect of assessments made under section 121 except in regard to Rs 299 1 1 0 he held the claim was barred by limitation
In regard to item b as it is a clear mistake the learned counsel for the assessee conceded both in the court below and before us that the amount covered by that item may be disallowed
Item c relates to the assessments made for the quarters 104 ending 31 3 52 30 6 53 30 9 5313 12 53 and 13 2 1954those assessments were set aside by the first appellate authority by its order dated May 28 1958
But the Commissioner held that the admitted tax paid before the orders of assessment was not the subject matter of appeals and therefore the amount NW towards the admitted tax was not refundable
The contention of the ass was that as the appellate authority had set aside the entire assessment the assessee would be entitled to a refund of the entire tax whether paid before or after the order of assessment
Item d relates to the assessment for the quarters ending 30 9 50 to 31 12 51 and 30 6 52 to 31 3 53 10 quarters ex cepting quarter ending 31 3 52
On the same reasoning adopted by the Commissioner in respect of item c he held that in regard to the amounts paid before the assessment the assessee was not entitled to a refund of the same
On behalf of the assessee it was contended that as the assessment orders were set aside he was entitled to refund of the amounts whether paid before or after the orders setting aside the assessments
Item e relates to refund of taxes paid in respect of Puri 11 and Cuttack II Circles
That part of the order was not questioned before us
It is therefore clear that the Commissioner reviewed his previous order which was passed on merits mainly on two grounds i that the application for refund in respect of certain amount was barred by limitation and ii the assessee was not entitled to a refund of the amounts paid before the assessment orders were made on the ground that the said amounts were not the subject matter of the appeals wherein the assessments were set aside
Both the question of limitation as well as the question of construc tion of the appellate orders and the impact of those orders on the amounts paid towards tax before the assessments were arguable questions of fact and law
The Department should have raised the said questions before the Commissioner at the time he first made the order directing refund of the amounts claimed by the assessee
The wrong conclusion if any arrived at by the Commissioner in his earlier order because of the fact that the said two arguments were not advanced before him cannot be said to be errors apparent on the face of the record arising or accruing from an accidental slip or omission
The errors if any arose because the Department did not raise those points before the Commissioner
They were also errors not apparent on the face of the record for the decision depends upon consideration of arguable questions of limitation and construction of documents
Indeed 105 the Commissioner re heard arguments and came to a conclusion different from that which he arrived on the earlier occasion
This is not permissible under r 83 of the Rules
In this view it is unnecessary to consider the argument ad vanced by Mr Sastry that the application for refund was not barred by limitation as the final orders in regard to the assessments was made by the Tribunal only in the year 1958
In the result the order of the Commissioner is set aside except in regard to items b and e mentioned in paragraph 7 of his order
In the circumstances there will be no order as to costs


Summary:
The appellant was a private limited company carrying on business mainly as building contractors in the State of Orissa
It was assessed to sales tax under the provisions of the Orissa Sales Tax Act 1947 and made payments towards the tax assessed
Subsequently on the basis of the decision of this Court in State of Madras vs Gannon Dunkerley  Co 119591 SCR 379 the appellant filed a writ petition in the High Court challenging the said assessments
The High Court quashed the assessments and directed refund of that portion of the tax which was not barred by limitation on the date of filing the application The appellant thereupon filed an application before the Sales Tax Officer for refund of the amount payable to him in view of the said decision
The Sales Tax Officer rejected the application on the ground that it was made by only one of the directors
The Commissioner of Sales Tax in A revision filed against the said order set aside the order of the Sales Tax Officer and held that the appellant was entitled to the refund applied for and directed the said officer to issue refund payment orders as early as possible
Subsequently the Commissioner issued a notice to the appellant under r 83 of the Orissa Sales Tax Rules 1947 calling upon it to show cause why the order earlier passed by him should not be reviewed
The Commissioner then reviewed his
previous orders and held that the appellant would be entitled to refund of the taxes paid subject to the disallowances made in his order
The appellant appealed to this Court by special leave
The question for consideration was whether the Commissioner s Order in review was a proper order under r 83
HELD Rule 83 provides a summary remedy within a narrow compass
The jurisdiction of the Commissioner under this rule is a limited one and is confined only to the correction of arithmetical or clerical mistakes or errors apparent on the face of the record arising or occurring from accidental slip or
omission in an order passed by him
However widely the said expressions are construed they cannot countenance a reargument on merits on questions of fact or law or permit a party to raise new arguments which he has not advanced in the first instance
B In the present case the Commissioner reversed his previous order which was passed on merits mainly on two grounds  i that the application for refund in respect of certain amounts was barred by limitation  and ii the assessee was not entitled to a refund of the amounts paid before the assessment orders were made on the grounds that the said amounts were not the subject matter of the appeals wherein the assessments were set aside
Both the question of limitation as well as the question of construction of the appellate orders and the impact of those orders on the amounts paid towards tax before the assessments were arguable questions of fact and law
The Department should have raised the said questions before the Commissioner at the time he first made the 100 order directing refund of the ammounts claimed by the assessee
The wrong conclusion if any arrived at by the Commissioner in his earlier order because of the fact that the said two arguments were not advanced before him cannot be said to be error on the face of the record arising or accruing from an accidental slip or omission
The errors if any arose because the Department did not raise those points before the Commissioner
They were also errors not apparent on the face of the record for the decision depended upon consideration of arguable questions of limitation and construction of documents
Indeed the Commissioner reheard the argument and came to a conclusion different from that which he arrived at on the earlier occasion
That is not permissible under 83 of the Rules
104 E 105 A