TMI Blog2011 (3) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... g that order exceeded its jurisdiction by re-appreciating the evidence on record and holding that there was no mala fide intention on the part of assessee-respondent for tax evasion. Such re-appreciation of the evidence to come to a contrary finding was not available under section 37 of the Act of 1994 while exercising the power of rectification of error apparent on the face of the records, orders passed by the Taxation Board on January 22, 2009 as also the impugned order and judgment passed by the High Court upholding the said order of the Taxation Board are hereby set aside and quashed and the original order passed by the assessing officer is restored, appeal is allowed - Civil Appeal No. 2692 of 2011 - - - Dated:- 29-3-2011 - MUKUNDAKAM SHARMA DR. AND ANIL R. DAVE JJ. Abhishek Gupta and Milind Kumar, Advocates, for the appellant. -------------------------------------------------- The judgment of the court was delivered by DR. MUKUNDAKAM SHARMA J. Leave granted. This appeal is directed against the judgment and order dated May 3, 2010 passed by the Rajasthan High Court, Jodhpur Bench, in S.B. Civil (Sales Tax) Revision No. 74 of 2010, whereby the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, Ajmer by passing an order dated January 22, 2009. By the aforesaid order the Taxation Board modified its earlier order to the extent of holding that as the assessee-respondent had declared all his sales in the books of accounts, in that situation, in order to levy penalty, the Department has to also prove additionally, that there was a mala fide intention on the part of the assessee-respondent for tax evasion, which is not revealed in the present case. It was further held that as the mala fide intention of the assessee-respondent for tax evasion has not been proved and since no such evidence is available on record from which it could be established that the assessee-respondent had the mala fide intention behind recovering the tax at the rate of eight per cent, the order of levying penalty is not justifiable. After recording the aforesaid findings, the Taxation Board passed an order dated January 22, 2009 to the extent of amending its previous order dated May 13, 2008 and set aside the order passed by the Deputy Commissioner (Appeals), Bikaner dated March 29, 2005 on the issue of tax evasion only, however, maintained the finding on the issue of penalty. Being aggrieved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was valid when it was made and 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. . . ." The Taxation Board by its order dated May 13, 2008 was disposing of an appeal filed against the order dated March 29, 2005 passed by the Deputy Commissioner (Appeals). By the aforesaid order dated May 13, 2008 the Taxation Board upheld and accepted the contention of the appellant herein that "thermo ware" is not similar to "plastic product" and that rather they are two different products/articles, which in fact is also proved and established from the documents on record. It was, therefore, held that the conclusion arrived at by the assessing officer is well-considered and reasonable. It was also held that, although, in the appellate judgment, given by the Deputy Commissioner (Appeals), reference was made to the use of "plastic granules" and "powder" as raw material for manufacturing "thermo ware" for treating "thermo ware" as covered under the category of plastic goods/products, but neither any evidence nor any reasonable and justifiable ground was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act, it was held by this court as follows at para 8: "8. The scope and ambit of a proceeding for rectification of an order under section 154 and a proceeding for revision under section 263 are distinct and different. An order of rectification can be passed in certain contingencies. It does not confer a power of review. If an order of assessment is rectified by the assessing officer in terms of section 154 of the Act, the same itself may be a subject-matter of a proceeding under section 263 of the Act. The power of revision under section 263 is exercised by a higher authority. It is a special provision. The revisional jurisdiction is vested in the Commissioner. An order thereunder can be passed if it is found that the order of assessment is prejudicial to the Revenue. In such a proceeding, he may not only pass an appropriate order in exercise of the said jurisdiction but in order to enable him to do it, he may make such inquiry as he deems necessary in this behalf." In paragraph 12 of the said judgment it was also held that when different jurisdictions are conferred upon different authorities, to be exercised on different conditions, both may not be held to be overla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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