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TMI Blog1971 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... as Rs. 74.93, instead of Rs. 749.31; and he issued a notice of final assessment and refund order, exhibit P-1 dated 23rd September, 1966, showing the total tax payable by the petitioner as Rs. 224.55 and allowing him a refund of Rs. 69.84, after setting off the above amount of tax against a sum of Rs. 294.39 which he had already paid as tax. The Sales Tax Officer noticed the arithmetical error, which he had made in calculating the tax as per his order of assessment. He rectified the same and passed an order, exhibit P-2 dated 9th November, 1967, showing the correct figures, and requiring the petitioner to pay a sum of Rs. 604.54 after setting off the above-said sum of Rs. 294.39 which he had already paid. The petitioner kept quiet. The Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment or penalty, and thereupon the provisions of this Act and the rules made thereunder shall apply as if such notice had been given in the first instance. Explanation.-The liability to pay the tax or other amount will arise only from the date specified in the revised notice." Admittedly, no notice was given to the petitioner before exhibit P-2 was passed; but the learned Government Pleader contended that notice was not necessary as the error rectified was only an obvious arithmetical error, which did not have the effect of enhancing the assessment, and that all that was done by exhibit P-2 was to show the correct amount of tax payable under the original assessment. The argument is quite attractive; but I think that it cannot be accepte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants. Section 35 of the Indian Income-tax Act, 1922, corresponds to section 43 of the Kerala General Sales Tax Act, 1963. Both in the case before the Supreme Court and in the instant case, the errors were patent on the record, and there was no scope for any dispute that the amounts claimed were rightly due from the assessees concerned. I am, therefore, constrained to uphold the petitioner's contention that the order exhibit P-2 is bad, as it was made without notice as required by section 43 of the Act. 3.. The next question for my consideration is whether I should exercise my jurisdiction under article 226 of the Constitution on the facts of this case. Exhibit P-2 is dated 9th November, 1967, and the petitioner has filed this petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of law. This clearly implies that the procedure for imposing the liability to pay tax has to be strictly complied with. Where it is not so complied with the liability to pay the tax cannot be said to be according to law." That was a case where the assessment itself was attacked on the ground that it was not made in compliance with the provisions of the law, nor by the competent authority. The attack was upheld and the assessment was quashed. The above statement does not support the contention that the recovery proceedings can be attacked, so long as the assessment pursuant to which the said proceedings are taken remains in force. 5.. Reference was also made to another decision of the Supreme Court in Deputy Commercial Tax Officer v. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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