JUDGMENT 1. REMINGTON Rand Incorporated (hereinafter referred to as the American Company) is a company incorporated in the United States of America and up to April 1, 1952 was doing business in India. With effect from April 1, 1952, the petitioner Company, Remington Rand of India Limited, took over the Indian business of the American Company either as a transferee or otherwise as its successor in business. 2. FOR the year ended February, 1949, the American Company was assessed to sales tax to an amount of Rs. 1,31,972-5-0. Since at that time there was no dispute that the American Company had deposited towards the tax, presumably under section 10 (3) of the Bengal Finance (Sales Tax) Act, 1941, a sum of Rs. 1,41,703-12-0, no further tax was found due and payable by the American Company but that a sum of Rs. 9,731/7/-was found to have been paid in excess by it. Here in below is quoted a relevant extract from the assessment order, dated April 30, 1950: "assessment NOTE/order. The Returns when consolidated show: Gross Turnover Rs. 33,21,155-10-9 Less Freight 6,057-1-6 Less Sec. 5 (2) (a) (ii) 28,645-2-3 Less Sec. (iii) 3,96,465-5-9 Less Sec. (iv) 3,39,894-9-6 Rs. 7,71,062- 3-0 Balance "a" Rs. 25,50,093- 7-9 "the assessment is accordingly made as under:- The notice of demand in Form VII, that was issued to the American Company, in so far as it is material for the Rule, reads as follows: (1) Tax payable Rs. 1,31,972- 5-0 (2) Penalty under section 11 (1) Rs. x (3) Penalty under section 11 (2) Rs. x Less tax paid Rs. 1,41,703-12-0 (4) Tax due Rs. x Excess Rs. 9,731- 7-0." 3. AFTER the petitioner company had taken over the Indian business of the American Company, the respondent Commercial Tax Officer called upon the petitioner company to deposit a sum of Rs. 19,764-11-0, on account of additional sales tax payable in respect of the four quarters ended February, 1951. At this stage the petitioner company claimed that it was entitled to adjust the excess payment of Rs. 9,731-7-0 against the claim for additional sales tax and to pay only the balance, namely, Rs. 10,033-4-0. The respondent Commercial Tax Officer was not agreeable to the adjustment because in his opinion the adjustment was not allowable in the absence of a final refund adjustment order. 9,731-7-0 against the claim for additional sales tax and to pay only the balance, namely, Rs. 10,033-4-0. The respondent Commercial Tax Officer was not agreeable to the adjustment because in his opinion the adjustment was not allowable in the absence of a final refund adjustment order. The petitioner company applied for a refund adjustment order, on February 2, 1955, and also sent a reminder, dated February 14, 1955, but did not receive the refund adjustment order. 4. ON February 3, 1960, several years after the petitioner had applied for the refund adjustment order, the respondent Commercial Tax Officer wrote to the petitioner that no refund was due to it but instead thereof a sum of Rs. 17,815-11-0 was payable by it on account of sales tax due for the year ended February, 1949. A relevant portion from the letter aforementioned is set out below: ". . . . . . . . the refund of Rs. 9731-7-0 claimed by you from out of the tax paid by you for the year ended 28-2-49 is not really due to you. In the form VII notice for the year 1948-49 against the liability of Rs. 1,31,972-5-0 tax paid by you was wrongly shown as Rs. 1,41. 703-12-0 details of which amount Eire as under: Tax for the qr. ended 28.02.48 Rs. 27547/ 2/- 31.05.48 Rs. 25314/11/- 31.08.48 Rs. 27386/ 2/- 30.11.48 Rs. 33841/ 8/- Rs. 114089/ 7/- paid by challan dt . 24.3.49 28.02.49 Rs. 27614/ 5/- paid by challan dt. 31.3.49 Total Rs. 141703/12/- You will thus notice that the tax paid for the quarter ended 28.2.48 at Rs. 27,547/2/- has been wrongly given credit to you in the assessment for the 4 quarters ended 28.2.49. Instead of the refund of Rs. 9731/7/- claimed by you have rather to pay a further amount of Rs. 17,815/11/- which you are asked to pay within a fortnight from the date hereof. " Thereafter, on March 15, 1960, the respondent, Commercial Tax Officer made the following order: "assessment u/s. 11 (1) No. EL/7b/16 of 1949-50. 4 Qrs. ended 28th February, 1949. 9 15.3.60. For the 4 qrs. ending 28.2.49 assessment was made at a Taxable turnover of Rs. 28,15,409 /- and a Tax payable Rs. 1,31,972 -5-0. Dealer paid for the above period as under: For Qr. endind - 31.05.48 Rs. 25,314-11-0 31.08.48 Rs. 27,386- 2-0 30.11.48 Rs. 33,841- 8-0 28.02.49 Rs. 4 Qrs. ended 28th February, 1949. 9 15.3.60. For the 4 qrs. ending 28.2.49 assessment was made at a Taxable turnover of Rs. 28,15,409 /- and a Tax payable Rs. 1,31,972 -5-0. Dealer paid for the above period as under: For Qr. endind - 31.05.48 Rs. 25,314-11-0 31.08.48 Rs. 27,386- 2-0 30.11.48 Rs. 33,841- 8-0 28.02.49 Rs. 27,614- 5-0 Total Rs. 1,14,156-10-0 But the tax paid was wrongly shown at Rs. 1,41,703-12-0, including in this amount, the amount of Rs. 27,547-2-0, paid by the dealer for the quarter ending 28.2.48. On this mistake coming to my notice I asked the dealer by my letter dated 3.2.60 to pay the balance tax of Rs. 17,815-11-0. Dealer disputed this demand by his letter dated 26.2.60 on the ground mainly that the said assessment cannot, after so long a period, be reopened. He was informed by my letter dated 1.3.60 that the assessment, of taxable turnover of Rs. 28,15,409-0-0 and of tax payable of Rs. 1,31,972-5-0 was not being altered and that the arrear tax could be realised within 60 years. He was again requested to pay the balance tax. Dealer has again refused to pay and has rather threatened to go to the High Court, against this demand. It is quite clear from section 11 (3) (b) and section 11 (4) that the demand is payable by and realizable from the dealer. Before reporting the demand to the Certificate Officer for realisation a revised form VII be issued fixing 21.4.60 by which the demand is to be paid. I have written another letter to the dealer to-day in this matter. I do not expect any better response from him. " 5. HE also issued a fresh notice in form VII, which was labeled as "revised notice", calling upon the petitioner to pay the sum of Rs. 17,815-11-0. The petitioner, through its Solicitors, Messrs. Orr Dignam and Co., objected to the demand and called upon the respondent Commercial Tax Officer to withdraw the same but failed to get any response. 6. IT is in these circumstances that the petitioner company moved this Court asking for a writ in the nature of Certiorari for quashing of the order, dated March 15, 1960, and also the revised notice in form VII and further asked for consequential writs in the nature of Mandamus and Prohibition. Mr. 6. IT is in these circumstances that the petitioner company moved this Court asking for a writ in the nature of Certiorari for quashing of the order, dated March 15, 1960, and also the revised notice in form VII and further asked for consequential writs in the nature of Mandamus and Prohibition. Mr. Meyer, learned Advocate for the petitioner company, argued four points in support of the Rule. He contended, in the first place, that even assuming for the sake of argument that the assessment order, dated November 30, 1950, contained an error in calculation of the amounts deposited by the assessee, under section 10 (3) of the Act, the error could be corrected by way of review within four years of the passing of the order. He relied upon the provisions of section 20 (4) of the Act and Rule 80 (6) of the Bengal Sales Tax Rules, 1941, in support of this contention. Section 20 (4) and Rule 80 (6) are set out below: "sec. 20 (4). Subject to such rules as may be prescribed any assessment made or order passed under this Act or the rules made thereunder by any person appointed under section 3 may be reviewed by the person passing it upon application or of his own mssotion. " "rule 80 (6 ). The Commissioner or any other authority appointed under the Act shall not, of his own motion, review any assessment made or order passed under the Act or the rules thereunder if- (i) the time within which an application for review may be made before him has not expired; or (ii) the assessment has been made or the order has been passed more than four years previously : provided that any assessment made or order passed under the Act or the rules thereunder before the commencement of the Bengal Finance (Sales Tax) (West Bert-gal Amendment) Act, 1950, may be reviewed by such authority at any time within four years from the commencement of the said Amendment Act if the time within which an application for review may be made has expired. " 7. SINCE in the instant case the correction of error was sought to be made about 10 years after the assessment order, dated November 30, 1950, Mr. Meyer contended, the power of review was barred by limitation. Mr. Meyer contended, in the next place, that the. " 7. SINCE in the instant case the correction of error was sought to be made about 10 years after the assessment order, dated November 30, 1950, Mr. Meyer contended, the power of review was barred by limitation. Mr. Meyer contended, in the next place, that the. Commissioner of Commercial Tax, no doubt, had the power under section 20 (3) of the Act of his own motion to revise any assessment made or order passed by any person appointed under section 3 of the Act to assist him. Such a power could also be exercised by his delegates. But there was a period of limitation prescribed for exercise of such power under Rule 80 (5) of the Bengal Sales Tax Rules, which is set out below: "rule 80 (5 ). The Commissioner or any other authority to whom power in this behalf has been delegated by the Commissioner, shall not, of his own motion, revise any assessment made or order passed under the Act or the rules thereunder if- (i) the time within which an appeal or application for revision, as the case may be, may be made before him has not expired; or (ii) the assessment has been made or the order has been passed more than four years previously: provided that any assessment made or order passed under the Act before the commencement of the Bengal Finance (Sales Tax) (West Bengal Amendment) Act, 1950, may be revised by such authority at any time within four years from the commencement of the said Amendment Act if the time within which an appeal or application for revision, as the case may be, may be made has expired. " 8. MR. Meyer contended that the power of revision was also barred in the instant case by efflux of time. He contended further that apart from the power of review or revision, the Act contained no other provision for rectification of errors in assessment analogous to the provision of section 35 of the Indian Income-tax Act and, therefore, the order, dated March 15, 1960, if it purported to be merely an order of rectification, could not otherwise be saved. Mr. He contended further that apart from the power of review or revision, the Act contained no other provision for rectification of errors in assessment analogous to the provision of section 35 of the Indian Income-tax Act and, therefore, the order, dated March 15, 1960, if it purported to be merely an order of rectification, could not otherwise be saved. Mr. Meyer also contended that the order of assessment, dated November 30, 1950, had been made by an Assistant Commissioner of Commercial Taxes and the error, if any, contained in the order could not be corrected by a Commercial Tax Officer, who was lower in rank in the official hierarchy. Mr. Meyer lastly contended that section 17 of the Act, in so far as it went to make the transferee of a business responsible for the tax liability of the transferor, without opportunity to him to contest the correctness of the assessment was an unreasonable restriction on the right of the transferee to carry on trade or business and therefore void under the Constitution. Mr. Jyotish Chandra Pal, learned Advocate for the Commercial Tax Authorities, realised the difficulty in the way of supporting the order, dated March 15, 1960, as an order passed either by way of review or revision. He, therefore, contended that the said order did not correct, review, revise or change the assessment order, dated November 30, 1950, because the assessment of sales tax on the American Company, for the period ended February, 1949, remained at the original figure of Rs. 1,31,972-5-0, even after the order, dated March 15, 1960. He said that the portion of the assessment order, dated November 30, 1950, beginning with the words, "less already paid-Rs. 1,41,703-12-0" and ending with the words, "excess-Rs. 9731-7-0", was no part of the assessment order but was merely a calculation or a note made to find out how much was due and payable by the assessee by way of tax. He contended, on the observations made in Whitney v. Inland Revenue Commissioner (1) (L. R. 1926 A. C., 37), that there were three stages in the imposition of sales tax-"there is the declaration of liability, that is the part of Statute, which declares what persons in respect of what property are liable. Next, there is the assessment, that ex hypothesis has already been fixed. Next, there is the assessment, that ex hypothesis has already been fixed. But the assessment particularises the exact amount which a person liable to pay has to pay. Lastly, comes the method of recovery, if the person taxed does not pay". Mr. Pal contended that the assessment order, dated November 30, 1950, ended with the figures Rs. 1,39,972-5-0, which was the particularisation of the exact sum which the assessee was to pay. The rest of the order was not relevant for the purpose of the assessment but was germane for the stage of recovery of tax. He thought that section 11 (3) of the Act supported this contention of his. Section 11 (3) of the Act is set out below: "11 (3) The amount of tax-- (a) due where the returns are furnished without receipt showing full payment thereof, or (b) assessed under sub-section (1), less the sum, if any, already paid by the dealer in respect of the said period, or (c), shall, together with any penalty that may be directed to be paid under any of the provisions of this section, be paid by the dealer into a Government Treasury or the Reserve Bank of India by such date as may be specified in a notice issued by the Commissioner for this purpose." 9. MR. Pal argued that the words "assessed under sub-section (1), less the sum, if any, already paid by the dealer," as in section 11 (3) (b) of the Act, indicated that the deduction of the sum already paid was no part of the assessment or the assessment order. The deduction of the sums already paid was merely for the purpose of calculation of what sum was realisable from the dealer under the assessment. If any error had crept into such calculation, Mr. Pal contended, that error could at any time be corrected by the revenue authorities in exercise of their inherent power to correct mistakes. In support of this contention Mr. Pal relied upon an observation of Sinha, J. in the case of Shib Prasad Mandal v. State of West Bengal (2) (63 C. W. N. 88 at page 98) to the following effect: "in my opinion it is unnecessary to draw a close parallel with judicial proceedings. The R. T. A. carries out duties which are administrative, but in certain respects, of quasi judicial nature. The R. T. A. carries out duties which are administrative, but in certain respects, of quasi judicial nature. I do not see why, when it finds that an order has been made inadvertently overlooking that the law had in the meanwhile been changed, that order cannot be rectified. All that the R. T. A. purported to do was to rectify a gross mistake which appeared on the face of the proceedings. It is not to be considered with the same strictness and formality as a review in a purely judicial proceeding. I should think that for an administrative body sometimes carrying cut quasi-judicial functions, there is an implied power to rectify such mistakes." 10. MR. Pal argued that by the order, dated March 15, 1960, the previous assessment order of November 30, 1950 was not being touched or interfered with. All that was being done was to correct an apparent error of calculation as to the total deposits made by the American Company, under section 10 (3) of the Act. Since the assessment was not being touched, this sort of correction of error could be made by the revenue officers in exercise of their inherent power and the exercise of such power was not controlled by any rule of limitation. In my opinion, the contention of Mr. Pal is not very well conceived. Under the scheme of the Act, before a dealer furnishes returns of sales tax, he is required to deposit the admitted amount of tax and to file or furnish with his returns receipt or receipts of such payments (see section 10 (3) of the Act ). If the revenue authorities are not satisfied with the correctness of the returns filed by the dealer, they may assess the dealer to the best of their judgment, under section 11 (1) of the Act, after giving to the dealer an opportunity of being heard. What the assessing authority does under section 11 (1) of the Act is to assess the amount of tax to be paid by the dealer, after taking into consideration amounts already paid by him. That is what appears from Rules 54 and 55 of the Bengal Sales Tax Rules which are set but below: "54. What the assessing authority does under section 11 (1) of the Act is to assess the amount of tax to be paid by the dealer, after taking into consideration amounts already paid by him. That is what appears from Rules 54 and 55 of the Bengal Sales Tax Rules which are set but below: "54. After considering any objection made by the dealer and any evidence produced in support thereof and, in the case where the Assessing authority is an Assistant Commissioner who has deputed a Commercial Tax Officer under rule 50 to hear the dealer's objection after considering also the opinion, if any, of such Commercial Tax Officer sent under clause (iii) of rule 51, the Assessing authority shall assess the amount of tax (if any) and penalty (if any) to be paid by the dealer, and shall briefly but clearly record the reasons on which he bases his order." [underlined by myself for emphasis.] 55 (1). If any sum is payable by the dealer under rule 54 the Assessing authority shall serve a notice in Form VII upon him specifying the date, not less than thirty days after the service of the notice on which payment shall be made, and he shall also fix a date on which the dealer shall produce the receipted challan in proof of such payment. [underlined by myself for emphasis.] 11. THEREFORE, it is not proper to say that the consideration of the amount deposited by the dealer, under section 10 (3) of the Act, forms no part of the assessment. The figure of tax payable by the dealer cannot be arrived at without considering the payment made by him under section 10 (3) of the Act. Therefore the portion of the assessment order dated November 30, 1950, and the demand in Form VII thereunder, in which it was found that the tax due from the assessee was nil and that a sum of Rs. 9731-7-0 was refundable to him out of the sum deposited by the assessee in excess, formed part of the assessment order. Therefore the portion of the assessment order dated November 30, 1950, and the demand in Form VII thereunder, in which it was found that the tax due from the assessee was nil and that a sum of Rs. 9731-7-0 was refundable to him out of the sum deposited by the assessee in excess, formed part of the assessment order. That being so, if any error had crept in the assessment order, namely, in deducting the sum already deposited and in finding out the remaining tax liability of the assessee, that error could only be corrected by review or revision, within four years of the making of the assessment and the passing of the order and not thereafter. The case relied upon by Mr. Pal does not help him. I have already held that the finding that a sum of Rs. 1,41,703-12-0 had already been deposited by the assessee was part of the assessment order. After taking that sum into consideration there was a further finding that nothing was payable by the assessee and accordingly there was an order to issue notice in Form VII containing a nil demand. For correction of the assessment order only two courses were open to the authorities, namely, either to review or to revise the order. For such review or revision there is a special law of limitation prescribed by Rule 80 of the Bengal Sales Tax Rules. In the case relied upon by Mr. Pal there was an administrative order corrected by an administrative body where there was no period of limitation prescribed. In the instant case, however, an assessing authority exercising judicial functions as to taxation, tried to correct an error in the assessment order. That power could be exercised, as I have already held, by way of review or revision. There being a period of limitation prescribed under the rule for the exercise of that power of review or revision, the power could not be exercised after the expiry of that period. For the reasons aforesaid I find that there is no substance in the argument advanced by Mr. Pal and I uphold the first two branches of the argument made by Mr. Meyer. 12. I also uphold the argument of Mr. Meyer that there is no inherent power under the Act to correct mistakes in the assessment order apart from the procedure prescribed by way of revision or review. Pal and I uphold the first two branches of the argument made by Mr. Meyer. 12. I also uphold the argument of Mr. Meyer that there is no inherent power under the Act to correct mistakes in the assessment order apart from the procedure prescribed by way of revision or review. A section like section 35 of the Indian Income-tax Act, for rectification of errors, is conspicuously absent in the scheme of the Bengal Finance (Sales Tax) Act. Since the order dated March 15, 1960, has to be set aside on the ground that such an order was made beyond the period of limitation, I need not consider, for the purposes of this Rule, the other arguments advanced by Mr. Meyer, particularly the argument concerning the constitutional validity or otherwise of section 17 of the Act. 13. I make it clear that I express no opinion on the following two points, namely, (1) that the assessee American Company had paid a sum of Rs. 1,41,703-12-0 as deposit under section 10 (3) of the Act, for the year ended February, 1949 and (2) that a sum of Rs. 9,731-7-0 is refundable to the petitioner company. 14. THIS Rule succeeds to the extent that the order dated March 15, 1960 and the demand notice in Form VII issued thereunder stand quashed. Let a writ of Certiorari issue accordingly. The Rule is made absolute with costs-hearing fee being assessed at five gold mohurs.