The Board of Revenue has no power to review its own order unless there is a specific provision in the statute conferring such power. The power of rectification of mistakes under section 45 of the M.P. General Sales Tax Act does not include the power of review.

Dipak Misra, J.

1. By this writ petition preferred under Article 227 of the Constitution the petitioner has prayed for quashment of the order passed by the Board of Revenue on 27-8-98 contained in Annexure P-7.

2. The factual matrix as has been depicted is that the petitioner was assessed to Sales Tax for the period 1-4-1989 to 31-3-1990 on sale of crockery at the rate of 14%. It was claimed that tax on crockery should have been assessed at a concessional rate of 6% as per notification No. A-3-13- 1986(17)/ST-V dated 6-3-86. The claim was not accepted by the assessing authority as well as by the appellate authority. A Second Appeal was filed before the Board of Revenue which was decided in favour of the petitioner. After the appeal was disposed of an application was filed by the Commissioner, Sales-tax before the Board of Revenue for referring the question of law arising therein to this Court as per section 44(1) of the M.P. General Sales Tax Act. When the matter relating to reference came up for hearing before the Board of Revenue the counsel for the department prayed for review of the order passed in Second Appeal. The Board of Revenue by impugned order held that the earlier order passed by the Member, Board of Revenue was erroneous and hence, no reference to the High Court was necessary. The learned Member further directed that the a Division Bench should be constituted to review the decision.

3. Assailing the aforesaid order Mr. B.L. Nema, learned senior counsel for the petitioner has raised a singular contention that the Board of Revenue has no power of review. It is his submission that only provision which is available in the Act is section 45 which deals with rectification of mistakes and in exercise of power under that section, the Board of Revenue could not have reviewed its earlier order and sent the matter to a Division Bench for decision, as that amounts transgression of power and usurping of jurisdiction. It is also his submission that the review is a creature of statute and unless there is provision for review the statutory authority cannot review its own order. In support of the submission he has placed reliance on the decisions rendered in the cases of T.S. Balaram. Income-tax Officer, Company Circle, Bombay vs: Volkart Brothers and others (1971) 82 ITR 50; Addl. Commissioner of Income Tax, Rajasthan, Jaipur vs. Chemical Limes, (1984) 149 ITR 325; Commissioner of Income-tax vs. United Mercantlile Co. (Private) Limited, (1986) 158 ITR 41; Sagar Co-operative Central Bank Ltd. vs. Commissioner of Income Tax, (1990) 186 ITR 292.

Mr. R.S. Jha, learned Deputy General for the State has submitted that the Board has acted within its jurisdiction as the order passed would come within the ambit and sweep of the concept of rectification as envisaged under section 45 of the Act. In support of his contention he has placed reliance on Shree Bhagwati Roller Flour Mills vs. Commissioner of Sales (Trade) Tax, (1998) 108 STC 157. The learned counsel for the State has also contended that every Tribunal has inherent power of review to correct the mistakes and also to pass orders which are incidental or ancillary in nature.

4. To appreciate the rival submissions raised at the Bar, it is appropriate and apposite to refer to section 45 of the Act. It reads as under:

45. Rectification of Mistakes. - (1) The Commissioner may:-

(i) on his own motion at any time within nine months from the date of any order passed by him; or

(ii) on an application made by the dealer within six months from the date of receipt of such application;

pass an order rectifying any mistake apparent from the record:

Provided that the Commissioner shall not entertain any application by the dealer unless it is made within six months from the date of the order sought to be rectified.

Provided further that no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of refund unless the Commissioner has given notice in writing to the