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2019 (7) TMI 1459 - HC - VAT and Sales TaxRectification of mistake - mistake apparent from the record - application of mind - Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in holding that while passing the original assessment order, the assessing authority has applied the rate of tax after application of mind and the same cannot be corrected under Section 31 of the Act under the heading mistake apparent on the face of record? HELD THAT:- Clearly, for a mistake to be rectified by the assessing officer, it had to be a mistake found in any order that may have been passed by him at an earlier point in time. For exercise of power under section 31, there had to pre-exist an order passed by him, upon conscious exercise of his powers to make assessment/reassessment - In the present case, in absence of any order being passed by the assessing authority, either under Section 28 or 29 of the Act, it cannot be conceded to him that he had any power to make the rectification, as claimed. The alleged order sheet entry dated 09.11.2009, is a rubber stamp noting of no consequence. On that date, first, the period prescribed under section 27 of the Act had not expired. Therefore the legal fiction with respect to payment of admitted tax and his entitlement to claim ITC had itself not arisen. Even otherwise, that note remained only an expression of legal fiction contained in section 27 of the Act. It did not and it could not provide for any effect or consequence more than the legislature contemplated. Thus, it was not an assessment order for any other purpose. It would always remain limited to the twin purpose (noted above), for which it had been created by the legislature - in absence of any assessment order issued by him there existed no basis to invoke the power of rectification under section 31 of the Act, by the assessing authority. Consequently, the assessing authority never acquired any jurisdiction to issue any notice or pass any order under Section 31 of the Act. The entire exercise carried by the assessing authority was a nullity and it must therefore necessarily fall. The question of law (as framed above) is answered in the affirmative i.e. against the revenue and in favour of the assessee.
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