TMI Blog2011 (3) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... ant evidence in support of his contentions before him. - S.B. Sales Tax Revision No. 82 of 2004 - - - Dated:- 28-3-2011 - VINEET KOTHARI DR., J. DR. VINEET KOTHARI J. This revision petition has been filed by the assessee under section 86 of the Rajasthan Sales Tax Act, 1994 being aggrieved by the order of learned Tax Board dated August 16, 2004 allowing the Revenue's appeal and setting aside the order of the first appellate authority dated August 22, 2000, whereby, the said first appellate authorityDeputy Commissioner (Appeals), Jaipur allowed the appeal of the assessee against the order passed by the assessing authority under section 37 of the Act and allowed the application for rectification dated February 29, 2000 filed by the assessee, which was rejected by order dated March 13, 2000 of the assessing authority. The learned Tax Board in its impugned order dated August 16, 2004 has held that the question raised by the assessee in his application for rectification under section 37 of the Act that the commodity manufactured and sold by him, namely, P.U. resin (polyurethane resin) was taxable only at the rate of 10 per cent in residuary entry and not at the rate of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Officer, Rajapalayam [1974] 33 STC 180 (Mad), the learned single judge of the Madras High Court held as under (headnote): . . . in a matter where the statute itself gave an exemption and that exemption had been inadvertently not claimed by the assessee, it is a case where the taxing authorities should equitably view the situation and render justice. (ii) In State Trading Corporation of India Ltd. v. Sales Tax Officer, Special Circle, Mattancherry [1972] 30 STC 93 (Ker), the learned single judge of the Kerala High Court held that (headnote): If, by mistake, an assessment has been made by an assessing authority at a higher rate, it is within the power of the assessing authority under section 43 of the Kerala General Sales Tax Act, 1963, to rectify that mistake and refund to the assessee the excess amount collected. The Deputy Commissioner has also power under section 35 to revise any order erroneously passed by the assessing authority in such a case. (iii) In State of Gujarat v. Ajay Trading Company [1991] 83 STC 354 (Guj), the Division Bench of Gujarat High Court held as under (headnote): Where the Sales Tax Officer brought the respondent's turnover of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessing authority to exercise his power even in cases, where his order has been the subject-matter of appeal or revision. . . The learned counsel for the assessee submitted that the glaring mistake in the original assessment order, which also suffers from the vice of noncompliance with the statutory provisions under section 29(6) of the Act read with rule 47 of the RST Rules, 1995, which enjoined upon the assessing authority to give an opportunity of hearing before raising the rate of tax from 10 per cent to 16 per cent or wrongly imposing six per cent difference tax on such sale of P. U. resin. The remedy available to the assessee, even though the assessee did not avail of the remedy by way of appeal against such assessment order under section 84 of the Act, is to apply for rectification of such apparent error on the face of the record and such rectification having been refused by the assessing authority, the appeal against such rejection order was rightly allowed by the Deputy Commissioner (Appeals). He, therefore, submitted that the learned Tax Board has fallen into error in setting aside that order of the Deputy Commissioner (Appeals). He also submitted that the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude an order which was valid when it was made and it 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. Thus, the said Explanation to sub-section (1) includes within the scope of definition of mistake , the adjudicatory process at the hands of the courts of law up to apex court of the country and including the final appellate forum of Tax Boards under the Act. If the judgments of such superior court can furnish a ground for rectification of mistake, if the assessment order in hand is contrary to such law laid down by the courts of law, then, in the opinion of this court, the word mistake apparent from the face of record cannot be put in a very narrow or straitjacket compass and it cannot be restricted to a mistake like 2+2=4 equated with 5 or 6. The settled legal position in this regard is that even a mistake of law can be said to be a mistake apparent on the face of the record requiring rectification. The ultimate object of enacting such a provision in a taxing statute is also to achieve the object of correct assessment order, lest such mistakes w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the commodity in question could not be held to be synthetic adhesive and, therefore, rate of tax at 16 per cent could not be applied, that order came to be set aside by the learned Tax Board by the impugned order while allowing the Revenue's appeal on August 16, 2004. The contention of learned counsel for the Revenue, Mr. R.B. Mathur, that the option available to the assessee was to avail of remedy by way of appeal under section 84 of the Act against the assessment order, if he felt aggrieved and, therefore, such debatable question could not be raised under section 37 of the Act, does not have much of the strength in the light of the facts obtaining in the present case. It is true that remedy by way of appeal was also available to the assessee against the impugned assessment order also, but at the same time the issue as has been raised by the assessee in the rectification application under section 37 of the Act also deserves to be decided on merits instead of throwing out such application as falling outside the parameters of section 37 of the Act. In the absence of such question having been decided promptly after giving an opportunity of hearing to the assessee by leadi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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