TMI Blog2008 (8) TMI 862X X X X Extracts X X X X X X X X Extracts X X X X ..... permissible to take a different view in a proceeding under section 22 of the Act even if it is wrong. A decision on a debatable point of law or disputed question of fact is not a mistake apparent on the face of the record. The order of the Tribunal passed on rectification application is indefensible and the same is liable to be set aside. The rectification application so far as it relates to the refund of ₹ 5,48,055.62 is concerned stands rejected. It may be added that by the said order the Tribunal has corrected certain mistakes in respect of three forms C. No argument was advanced by the learned standing counsel in this regard and as such, the said portion of the order of the Tribunal stands confirmed, being not subject-matter of the present revision. Revision succeeds and is allowed. The order of the Tribunal is set aside. - 774 of 2000 - - - Dated:- 6-8-2008 - PRAKASH KRISHNA , J. PRAKASH KRISHNA J. The present revision under section 11 of the U.P. Trade Tax Act, 1948 arises out of an order passed by the Trade Tax Tribunal on an application for rectification filed under section 22 of the U.P. Trade Tax Act, 1948 (hereinafter referred to as, the Act ) by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the application under section 22 of the Act, on the facts of the present case, was not maintainable. The Tribunal according to him, in the guise of hearing of the rectification application has, as a matter of fact, reviewed its earlier order and taken a different view of the matter. He submits that the application under section 22 of the Act was not at all maintainable. Sri Bharat Ji Agrawal, learned senior counsel appearing for the dealeropposite party, submits that there was an error apparent in the earlier order of the Tribunal which has been rightly rectified by it by passing subsequent order. Elaborating the argument he submits that it has been held in the case of dealer itself that if the amount of tax wrongly realised by a dealer has been refunded to its purchasing dealers by issuing credit vouchers, in the present case in the year 1991, the Department is under legal obligation to refund the Central sales tax to the dealer-opposite party. Considered the respective submissions of the learned counsel for the parties and perused the record. A bare perusal of the aforestated section would show that it deals with rectification of mistake . The said sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it vouchers to the concerned purchasers has refunded the tax in the year 1991. It has placed reliance upon certain decisions of the apex court in Modi Industries Ltd. Modinagar, Ghaziabad v. State of U.P. [1991] UPTC 266, Kumaun Diesels, Nainital v. Commissioner of Sales Tax [1991] UPTC 734 and Hotel Clarks Shiraz v. Commissioner of Sales Tax [1992] UPTC 986 wherein it has been laid down that power of rectification can be exercised when the order was passed in ignorance of judgment of the High Court. In the order of the Tribunal it is mentioned that some order was passed by the High Court in the case of the dealer-opposite party itself relating to the assessment year 1986-87 delivered in revision No. 334 of 1999 decided on August 23, 1999 wherein it was laid down that if the amount has been refunded by a dealer to its purchasing dealer through refund vouchers, the Trade Tax Department is liable to refund the Central sales tax to the dealer if the tax was deposited wrongly. Sri Bharat Ji Agrawal, learned Senior Counsel for the dealer-opposite party, submits that in view of the judgment of this court in Hotel Clarks Shiraz v. Commissioner of Sales Tax [1992] UPTC 986, if subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Income-tax v. Hero Cycles Pvt. Ltd. [1997] 228 ITR 463 ; AIR 1998 SC 1555, wherein it has been held as follows: . . . Rectification under section 154 can only be made when glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as mistake apparent on the record. The rectification provisions of the Income-tax Act are pari materia to the provisions of the present Act. In addition to above, the apex court in a recent judgment in Deva Metal Powders Pvt. Ltd. v. Commissioner, Trade Tax, U.P. [2007] 10 VST 751; [2008] 36 NTN 4 has examined the matter in great depth with, reference to section 22 of the Act. The contents of paragraphs 9, 10 and 11 are reproduced below: 9. An error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an error apparent on the face of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake. On the other hand, it does not cover any mistake, which may be discovered by a complicated process of investigation, argument or proof. As observed by this court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 11.. 'Mistake' is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word 'mistake' is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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