TMI Blog1994 (3) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific case put forward by them before the assessing authority was that X-ray films were electrical goods falling under entry 130 of the First Schedule to the Act. This contention was not accepted by the assessing authority who passed the order exhibit P1 assessing the petitioner to tax at 5 per cent on their sales of X-ray films. Petitioner's appeal before the Appellate Assistant Commissioner having failed by the order exhibit P2, they approached the Tribunal by filing appeal T.A. No. 878/86 which was disposed of by the order exhibit P3 dated January 2, 1987. There the petitioner reiterated the contention that X-ray films were electrical goods and therefore taxable single point, and not general goods taxable multi-point. The Tribunal had e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try 151. The Chairman in his order held that X-ray films came within the scope of photographic films in entry 151 and accordingly allowed the rectification application as also the review petitions. He did not specifically deal with the maintainability of any of these applications, but simply allowed them on the finding that X-ray films were photographic films falling under entry 151. The Departmental Member in an elaborately considered separate order came to a contrary conclusion. He held in the first instance that the application for rectification filed under section 43 of the Act was not maintainable inasmuch as there was no error apparent on the face of the record. He also held that the petitions for review filed for the succeeding two y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review petitions were maintainable, and the Accounts Member holding to the contrary. This Court accepted the opinion of the Departmental Member with which the Accounts Member had concurred, that there was no discovery of new and important facts, which after the exercise of due diligence were not within the knowledge of the assessee when the original order of the Tribunal was made, and therefore the petitions for review were not maintainable. The tax revision cases were accordingly dismissed on June 16, 1993. 6.. That ended the controversy so far as the years 1985-86 and 1986-87 are concerned. The order exhibit P5 in so far as it related to the year 1984-85 in which the application concerned was one for rectification, is in challenge in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. In support of his application, petitioner relied on various dictionaries and Law Lexicons as to what exactly photographic films were. Section 43 enables the assessing authority or an appellate or revising authority to rectify any error apparent on the face of the record at any time within three years from the date of any order passed by it. The power is to rectify only an error apparent on the face of the record, and not any other. The power is a very limited one; the very jurisdiction to exercise the power depends on the existence of such an error. The power is analogous to that under section 154 of the Income-tax Act, 1961. In the oft quoted decision, T.S. Balaram v. Volkart Brothers [1971] 82 ITR 50, the Supreme Court has deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent from another circumstance, namely, the conduct and understanding of the petitioner himself. All along, in the assessment proceedings, right up to the Tribunal's order in T.A. No. 878 of 1986, and even thereafter when the next two appeals were disposed of, the petitioner had canvassed only for the position that X-ray films were electrical goods. He had no contention that they fell under entry 151. It is therefore clear that the error which is now set forth as apparent, was far from being apparent or obvious. In fact it was a point on which much could be stated on both sides, as could be seen from the difference of opinion in the Tribunal itself, and the conduct of the petitioner throughout the assessment proceedings. There was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with a second round with a contention that he should have been assessed under a different entry and not under the one for which he canvassed earlier. In other words, he will be enabled to go on contending for the applicability of one entry after another without any finality to the proceedings. The position will be otherwise if the matter in controversy is subsequently settled by an authoritative pronouncement which leaves no room for doubt or arguments. But when the interpretation is nebulous, an assessee cannot be allowed to reserve his points for a second round of challenge after he has lost in the first round. He is bound to put forward all his claims in relation to non-liability or rate of tax, in the proceedings. It is not up to him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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