JUDGMENT : J.K. Ranka, J. These revision petitions are directed against the order dated 29.04.2014 passed by the Rajasthan Tax Board, Ajmer in appeal nos. 1648/2013/Kota and 1649/2013/Kota whereby the appeals of the respondents have been allowed. Since, the facts in both cases are common hence these petitions are decided by this common order and it pertains to assessment year 2006 - 2007. 2. The brief facts of the case which can be noticed are that the respondent - assessee is carrying on business of manufacturing of wheat bran (Choker). The original assessment was completed on 28.06.2008 by the Assessing Officer, where on account of input tax credit (reverse tax) liability. @ 4% was levied and interest was also levied. However, the Dy. Commissioner (Appeals), in the light of judgment of the Rajasthan Tax Board In the case of CTO (A-E), Sriganganagar v. M/s. Durgeshwari Food Ltd., (2009) vol. 23 Tax Up - Date 360, allowed the claim of the indent - assessee. The revenue did not challenge the order passed in the original proceedings which attained finality. 3. Later on the judgment of the Tax Board in the case of Durgeshwari [Food Ltd. came to be reversed by this Court and the Assessing Officer in the light of judgment rendered by this Court in the case of CTO (A-E), Sriganganagar v. M/s. Durgeshwari Food Ltd., Sriganganagar (2012) 32 Tax Up - Date 3, wherein it has been held that on tax exempted goods ITC cannot be allowed in full and is to be allowed proportionately. Accordingly, a show cause notice under section 33 of the Rajasthan VAT Act, was issued to the assessee conveying that as to why in the light of the judgment rendered by this court, a mistake apparent can be said to occur in the assessment originally passed. 4. It was contended by the assessee that under section 33, only a mistake apparent on the face of record, can be rectified. Since the matter attained finality, therefore, there was no mistake apparent, however, the Assessing Officer did not accept the contention of the assessee and imposed reverse tax holding that in the light of the judgment of this Court (supra) mistake apparent on the face of record happened and thus tax was levied. 5. The matter travelled before the Dy. Since the matter attained finality, therefore, there was no mistake apparent, however, the Assessing Officer did not accept the contention of the assessee and imposed reverse tax holding that in the light of the judgment of this Court (supra) mistake apparent on the face of record happened and thus tax was levied. 5. The matter travelled before the Dy. Commissioner (Appeals), on an appeal by the assessee, who dismissed the appeal upholding the order passed by the Assessing Officer. 6. On further appeal filed by the assesses before the Rajasthan Tax Board, it was pleaded that under section 33, only a mistake apparent on the (ace of record, can be rectified. The Tax Board accepted the contention of the counsel for the assessee - respondent and further held that the Dy. Commissioner (Appeals) in original proceedings, had allowed the claim and the assessment order merged in the order of Dy. Commissioner (Appeals) and accordingly, in the light of the theory of merger, quashed the order under section 33 and allowed the appeal filed by the assessee. Hence this revision petition. 7. Learned counsel for the revenue contended that under section 33, a mistake can be rectified suo moto by the revenue on the basis of the judgments of the Rajasthan Tax Board or Rajasthan High Court as well as Hon'ble Apex Court and section 33 is quite clear in this regard. She further contended that the order was passed within a period of four years. On the basis of judgment rendered by this court in the case of M/s. Durgeshwari Food Ltd., Sriganganagar (supra), which has decided same controversy. She further contended that substantial question of law arises out of the order of the Tax Board and needs consideration by this Court. 8. I have considered the arguments advanced by the counsel for the revenue. 9. It would be appropriate to quote section 33 of the RVAT Act "Rectification of a mistake (1) With a view to rectifying any mistake apparent from the record, any officer appointed or any authority constituted under this Act may rectify suo motu or otherwise any order passed by him. 9. It would be appropriate to quote section 33 of the RVAT Act "Rectification of a mistake (1) With a view to rectifying any mistake apparent from the record, any officer appointed or any authority constituted under this Act may rectify suo motu or otherwise any order passed by him. Explanation:- A mistake apparent from the record shall include an order which was valid when it was made and is subsequently rendered invalid by an amendment of the law having retrospective operation or by a judgment of the Supreme Court, the Rajasthan High Court or the Rajasthan Tax Board. (2) No application for rectification shall be filed under sub-section (1) after the expiry of a period of three years from the date of the order sought to be rectified. (3) Where an application under sub-section (1) is [presented to the assessing authority] and a receipt thereof is obtained, it shall be disposed of within a period of one year from the date of presentation and where such application is not disposed of within the said period, the same shall be deemed to have been accepted. (4) No rectification under this section shall be made after the expiry of four years from the date of the order sought to be rectified. (5) An order of rectification which has the effect of increasing the liability of a dealer in any way, shall not be made without affording him an opportunity of being heard." 10. Though the above section states that the mistake can be rectified on the basis of a judgment rendered by the Hon'ble Apex Court, Rajasthan High Court as well as Rajasthan Tax Board but in my view, there was no mistake in the order of assessing officer on the face of record, particularly in this case, when in the original proceedings, tax was levied, the appellate authority (Dy. Commissioner (Appeals)) in an appeal by the assessee, applied his mind and allowed the appeal filed by the assessee and set aside the levy and revenue did not choose to file a further appeal against the order of the Dy. Commissioner (Appeals), thus, the order of the Dy. Commissioner (Appeals) attained finality. In my view, there is vast distinction in between the two. In the present case the Dy. Commissioner (Appeals), thus, the order of the Dy. Commissioner (Appeals) attained finality. In my view, there is vast distinction in between the two. In the present case the Dy. Commissioner (Appeals) had already applied his mind, came to a conclusion, which order attained finality, whereas there is distinction in what is claimed by the revenue on the basis of a judgment rendered by this court in the case of M/s. Durgeshwari Food Ltd., (supra) which by itself, does not make it a mistake apparent on the face of record. 11. It is a case of merger of the original assessment order in the order of the Dy. Commissioner (Appeals) in the original proceedings and in the light of the theory of merger, in my view, the reificatory proceedings under section 33, are totally inapplicable in so far as this case is concerned. In the present case there is no mistake in the order of the assessing officer who passed order in original proceedings, mistake if any is in the order of Dy Commissioner (Appeals) which attained finality and which is not sought to be rectified. This Court in the case of Commercial Taxes Officer, Special Circle II, Jaipur v. Mohan Lal Bishambhar Dayal and Another (1979) 43 STC 288 in identical circumstances, has come to the conclusion that the theory of merger will apply and it would be appropriate to quote the relevant portion which reads ad infra I "It may be pointed out that after the Deputy Commissioner's order dated 17th June, 1968, the assessing authority's original order got merged into the Deputy Commissioner's order and so the assessing authority was riot competent in law to rectify this order by his order dated 26th August, g 1970. We are fortified in our conclusion by the two decisions of the Madras High Court, namely, Ceylon Thowfeck Hotel v. State of Madras, [1961] 12 S.T.C. 238(mad) and A. Haji Abdul Shukoor and Company v. State of Madras [1965] 16 S.T.C. 808 (mad). In Ceylon Thowfeck Hotel's case, it was held that the assessing authority can revise only his own orders of assessment and cannot revise the order of the 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. In Ceylon Thowfeck Hotel's case, it was held that the assessing authority can revise only his own orders of assessment and cannot revise the order of the 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 case, it has been laid down that the power of an assessing authority, i.e., Deputy Commercial Tax 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, the original order of assessment gets merged in the order passed on appeal and thereafter the Deputy Commercial Tax 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 strengthen in our conclusion by Section 4 of the Amendment and Validation Act. By Section 4 of the Amendment and 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 was 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 the 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. 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 7th March, 1977." 12. The Patna High Court in the case of Commissioner of Commercial Taxes, Bihar v. Rohtas Industries Ltd. (1979) 43 STC 484 , had an occasion to consider similar issue, held that if the subject matter dealt with by superior Tribunal is the order of assessment or any part of it, the later order will merge in the order passed by the former. In other words, the identity of the earlier order will be lost and get merged in the later. However, the subject matter differs at different stages, there can be no merger of one order in the other. If such items of transaction which have not been figured in the assessment order, have been processed afresh, either by the Appellate Authority or by the revisional authority, to the extent of such fresh subject matter, there can be no merger of one order in the other. In the instant case, the very levy of the claim about wheat bran (Choker) was before Assessing Officer originally and same issue was before the Dy. Commissioner (Appeals) who set aside the original proceedings and the order became final. 13. The Madras High Court in the case of Ceylon Thowfeck Hotel v. The State of Madras (1961) 12 STC 238 , held that the statutory provision authorising the levy of tax at Rs.4½ pies in the rupee was unconstitutional and unenforceable and tax should be assessed only at 3 pies per rupee. Thus the excess amount of Rs.936-1-2 that had been collected from the petitioner was refunded to him by adjustment on 30th September, 1956. Thus the excess amount of Rs.936-1-2 that had been collected from the petitioner was refunded to him by adjustment on 30th September, 1956. However on the basis of the Madras General Sales Tax (Third Amendment) Act (XV of 1956), to which we shall refer hereafter as the Amending Act, received that assent of the President on 1st October, 1956 and was published in the Gazette on 8th October, 1956. Section 17 of the Amending Act validated assessments under the provisions of the proviso to section 3(1) of the Act before it was amended and after amending Act XV of 1956 came into force the Dy. Commercial Tax Officer issued a notice to the petitioner on 08th January 1957, asking him to show cause why the assessment should not be revised at the rate sanctioned by the amended Act, that is, at 4½ pies per rupee. All the authorities namely; Commissioner as well as the Tribunal upheld finding of the Assessing Officer, however, the Madras High Court held that the Rule 17(3) does not authorise the assessing authority to revise the assessment ordered or finalised by a higher authority and under Rule 17(3) the assessing authority can revise only his own orders of assessment under Rule 17(3 - A), the Commercial Tax Officer as the appellate authority under section 11 can revise his order and the revising authority specified in section 12 can revise his order. The assessing authority cannot revise the order of the appellate authority or that the revising authority. In the present case the Assessing Officer in other words has revised the order of the Dy. Commissioner (Appeals), which is my view, is not permitted. 14. The Madras High Court in the case of A. Haji Abdul Shukoor and Company v. The State of Madras (1965) 16 STC 808 , has opined that the power of an assessing authority i.e. Deputy Commercial Tax Officer, under rule 18 of the Madras General Sales Tax Rules, 1939, to rectify an error apparent on the face of the record cannot be exercised by the assessing authority after the order of assessment has been confirmed by the appellate authority, i.e. the Commercial Tax Officer. In such a case the original order of assessment got merged in the order passed on appeal and thereafter the Deputy Commercial Tax Officer has no jurisdiction to interfere with the operation of the order as confirmed on appeal. 15. The Hon'ble Apex Court in the case of Kunhayammed and Others v. State of Kerala and Another (2000) 245 ITR 360, had after considering the issue held thus "(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before a superior forum and such superior forum modified, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law." 16. The Gujarat High Court in the case of Karsandas Bhagwandas Patel v. G.V. Shah, Income-tax Officer, Rajkot and others (1975) 98 ITR 255 has observed as under "Whether there is merger of the order of assessment of the Income-tax Officer in the appellate order of the Appellate Assistant Commissioner or not and, if there is, to what extent, depends upon the subject-matter of the appellate order. The order of assessment made by the Income-tax Officer merges in the order of the Appellate Assistant Commissioner only in so far as it relates to items considered and decided by the Appellate Assistant Commissioner. That part of the order of assessment which relates to items not forming the subject-matter of the appellate order is left untouched and does not merge in the order of the Appellate Assistant Commissioner. Even after an appeal from an order of assessment is decided by the Appellate Assistant Commissioner, a mistake in that part of the order of assessment which was not the subject-matter of review by the Appellate Assistant Commissioner and was left untouched by him, can be rectified by the Income-tax Officer under section 35 of the Indian Income-tax Act, 1922, because the mistake would be his own mistake which he can always correct under section 35(1). 17. 17. The Gujarat High Court in the case of Commissioner of Income tax v. Shashi Theatre Pvt. Ltd. (2001) 248 ITR 126 has held that the assessee had taxable income from the business of running a theatre and in ts return for the assessment year 1980 - 81 claimed investment allowance under section 32A of the Income-tax Act, 1961, for certain items. The Assessing Officer allowed investment allowance in respect of some and is allowed it in respect of others. On appeal, the disallowed items were held admissible for allowance. After the decision of the appeal, the Commissioner exercising his powers of revision under section 263 sought to withdraw the investment allowance originally granted by the Assessing Officer on the round that the cinema wheatear was not a small - scale industry eligible therefore. On appeal against the order of the Commissioner, the Tribunal held hat the revisional order was invalid. On a reference : "Held, that for considering the grant of investment allowance for items which were rejected by the Assessing Officer, it was necessary to go into the question of validity of the grant of investment allowance for the items already made admissible by the Assessing Officer. The grant of investment allowance on all the items which were granted and rejected by the Assessing Officer were matters for consideration and decision before the appellate authority. Clause (c) of the Explanation to Section 263(1) was attracted matters on which the appellate authority had bestowed consideration and given a decision. Accordingly, the order of the Assessing Officer could not have been revised under section 263 of the Act. 18. This court in the case of Commissioner of Income Tax v. Maharana Shri Bhagwat Singh (1993) 200 ITR 142 held that part of the order of the Income-tax Officer which was not made the subject-matter of appeal before the Appellate Assistant Commissioner by the assessee and which he had not examined would not merge in the order of the Appellate Assistant Commissioner and the Commissioner of Income-tax has jurisdiction to revise that part of the order and held thus "(i) that, in the instant case, there was a clear finding recorded by the Tribunal Assistant Commissioner in appeal were different and not the points considered by the Commissioner in his orders. As such, there was no merger of the other of the Income-tax Officer in that of the Appellate Assistant Commissioner and the Tribunal was not justified in holding that the Commissioner of Income-tax had no jurisdiction to pass orders under Section 263; (ii) that, however, the matter with regard to primogeniture was decided by the Tribunal on the merits and, therefore, in the absence of a separate question in respect thereof, no decision could be given by the Court." 19. Thus, in my considered view, the Assessing Officer could not have passed an order under section 33 of the VAT Act, as the original order on which appeal was allowed, merged in the order of the Dy. Commissioner (Appeals) and which attained finality. 20. Accordingly, I do not find any infirmity, illegality or perversity in the order impugned and there is no scope for raising any question of law and no question of law can be said to emerge out of the order of the Tax Board. However, the Tax Board has already directed the Assessing Officer to take legal recourse to revise the appellate order dated 12/08/2010 in accordance with law and such an action must have been taken by the Revenue in the interregnum. 21. Accordingly these revision petitions stand dismissed. Revision Dismissed.