TMI Blog2008 (10) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... o notice of best judgment assessment was ever given to the assessee before passing any order? Held that:- In view of the settled legal position, we are of the view that the assessment was not barred by limitation. In Murlidhar Mahabir Parshad [1967 (4) TMI 169 - SUPREME COURT OF INDIA] the honourable Supreme Court held that if notice of assessment had already been given, the assessment was to be treated to be within limitation. In the present case, notice of assessment was prior to the enforcement of amending law. The order of the Tribunal dated July 8, 2005, thus, suffered from error apparent on the face of record, which could be rectified.Accordingly, question No. (i) is decided against the assessee and in favour of the Revenue. For Question No. (ii) as the order of rectification was passed on September 6, 2007, while original order of the Tribunal was dated July 8, 2005 and thus, order of rectification was beyond limitation. In favour of assessee. If the order of the Tribunal holding the assessment to be barred by limitation was to be set aside, the Tribunal was bound to adjudicate on all issues in the original appeal. However, in view of our answer to question No. (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Rajiv Lumba, Advocate appeared and took adjournment. Thereafter, written objections were filed. The assessee refused to produce the account books on the ground that the Assessing Authority had no jurisdiction to frame assessment. The Assessing Authority rejected the objection as to jurisdiction on the strength of notification dated September 28, 1992 conferring powers of assessing authority on AETC (Inspection). It was observed that the conferment of the said power had already been upheld by the High Court in Devi Dass Gopal Krishan v. State of Punjab [1973] 31 STC 536 (P H). It was further observed that transfer under rule 39A of the case from ETO to AETC (Inspection) was valid. The plea of assessment being time-barred was also rejected. It was observed that the amendment was dated March 3, 1998 prescribing the time-period of three years from the last date for furnishing the last return. The amendment was held to be prospective which did not affect the earlier assessment years for which no time-limit was laid down. The Assessing Authority created a demand of Rs. 1,53,901 in addition to tax of Rs. 3,103 paid by the assessee. The assessee preferred appeals which were dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Matter was governed by old section 11(4) of the Act. Prayer on behalf of the assessee that in case the order of the Tribunal was to be rectified, the matter should be decided afresh, was also rejected as being beyond the scope of rectification application. Reliance was placed on judgments of this court in Emkay Industries v. State of Punjab [2005] 139 STC 57 and Khazan Chand Nathi Ram v. State of Haryana [2004] 136 STC 261. In spite of opportunity given, no reply has been filed on behalf of the State. We have heard learned counsel for the parties and perused the record. The learned counsel for the appellant submitted that by virtue of amendment made in the year 1998, the period of three years was laid down for completing the assessment and even if the said period is taken to have commenced from the date of amendment, the same came to an end on March 3, 2001 while the order of assessment was beyond the period of six years from the date of amendment. The amendment was applicable to the present case which was pending on the date the amendment came into force. The provision being procedural was applicable to pending proceedings and its applicability did not depend on the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall pass an order of assessment on the basis of such returns within a period of three years from the last date prescribed for furnishing the last return in respect of such period. (2) If the Assessing Authority is not satisfied without requiring the presence of dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at place specified therein, either to attend in person or to produce or to cause to be produced any evidence on which such dealer may rely in support of such returns. (2) If the Assessing Authority is not satisfied without requiring the presence of dealer who furnished the returns or productions of evidence that the returns furnished in respect of any period are correct and complete, he shall serve on such dealer a notice in the prescribed manner requiring him, on a date and at place specified therein, either to attend in person or to produce or to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of any period but has failed to apply for registration, the Assessing Authority shall, within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and in cases where such dealer has wilfully failed to apply for registration, the Assessing Authority may direct that the dealer shall pay by way of penalty, in addition to the amount so assessed, a sum not exceeding one-and-a-half times that amount. (6) If upon information which has come into his possession, the Assessing Authority is satisfied that any dealer has been liable to pay tax under this Act in respect of any period but has failed to apply for registration, the Assessing Authority shall, within five years after the expiry of such period, after giving the dealer a reasonable opportunity of being heard, proceed to assess, to the best of his judgment, the amount of tax, if any, due from the dealer in respect of such period and all subsequent periods and in case where such dealer has wilfully failed to apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (9) Any assessment made under this section shall be without prejudice to any penalty imposed under this Act. (9) Any assessment made under this section shall be without prejudice to any penalty imposed under this Act. (10) The Commissioner may, for reasons to be recorded in writing, extend the period of three years, for passing the order of assessment for such further period as he may deem fit. (11) Where the proceedings of the assessment are stayed by an order of any court, the period for which such stay remains in force, shall not count towards computing the period of three years specified under this section for passing the order of assessment. (12) The Assessing Authority may, on his own motion, review any assessment order passed by him and such review shall be completed within a period of one year from the date of the order under review. Re: Question No. (i) According to the learned counsel for the assessee, the impugned order was beyond the scope of rectification in view of the law laid down by the honour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation. The Tribunal had not gone into the question whether the new amendment was applicable or not. In the order of rectification, it was rightly held that new amendment did not apply. Reliance has also been placed on judgments of this court in Emkay Industries [2005] 139 STC 57 holding that the amendment was applicable if notice for assessment was after the coming into force of the Act and not otherwise. Scope of rectification is well known and has been subject-matter of consideration by the honourable Supreme Court, inter alia, in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137, Thungabhadra Industries Ltd. v. Government of Andhra Pradesh AIR 1964 SC 1372, T.S. Balram v. Volkart Bros. [1971] 82 ITR 50; [1971] 2 SCC 526; AIR 1971 SC 2204 and Deva Metal Powders Pvt. Ltd. [2007] 10 VST 751 (SC); [2008] 10 RC 78; [2008] 2 SCC 439. Since judgment in Deva Metal Powders Pvt. Ltd. [2007] 10 VST 751 (SC); [2008] 10 RC 78; [2008] 2 SCC 439 is a recent one, we may refer to the observations in the said judgment. Referring to earlier judgments in T.S. Balram [1971] 82 ITR 50; [1971] 2 SCC 526; AIR 1971 SC 2204 and Satyanarayan AIR 1960 SC 137, it was ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke must be 'apparent' from the record. Section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. . . In the present case, the Tribunal held that the assessment was barred by limitation without going into the question whether the amendment introduced on March 3, 1998 was applicable to proceedings already pending for which notice for assessment had already been given. The Tribunal held that this was an error apparent as the amendment did not extinguish the period of limitation still available for the pending assessments. View of the Tribunal is based on a judgment of this court in Emkay Industries [2005] 139 STC 57 which is directly on the point. Order of the Tribunal was, thus, clearly within the scope of rectification. The vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparent on the face of record, which could be rectified. Accordingly, question No. (i) is decided against the assessee and in favour of the Revenue. Re: Question No. (ii) The learned counsel for the assessee submitted that the order of rectification was passed on September 6, 2007, while original order of the Tribunal was dated July 8, 2005 and thus, order of rectification was beyond limitation. Reliance has been placed on judgment of this court in State of Punjab v. P.O. Sales Tax Tribunal [2000] 119 STC 82. The learned counsel for the State is unable to show any contrary view. In view of judgment of this court relied upon on behalf of the assessee, we hold that the order of the Tribunal was beyond the limitation for rectification and on that ground, the impugned order is liable to be quashed. Re: Question No. (iii) If the order of the Tribunal holding the assessment to be barred by limitation was to be set aside, the Tribunal was bound to adjudicate on all issues in the original appeal. However, in view of our answer to question No. (ii), this question has become academic. In view of our finding on question No. (i), these questions are to be answered in fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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