TMI Blog2010 (2) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... is thus set aside. Revision allowed. - 163, 164 of 2002 - - - Dated:- 17-2-2010 - BHARATI SAPRU , J. BHARATI SAPRU J. Since the controversy involved in both the aforesaid revisions, being Trade Tax Revision No. 163 of 2002 (for the assessment year 1994-95) and Trade Tax Revision No. 164 of 2002 (for the assessment year 1995-96) is identical, the same is being decided by a common judgment and order treating the Trade Tax Revision No. 163 of 2002 as a leading one. Heard learned counsel for the assessee and Sri B.K. Pandey, learned standing counsel appearing for the State. The Trade Tax Revision No. 163 of 2002 has been filed by the assessee for the assessment year 1994-95 against the order of the Tribunal dated February 8, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Tribunal or the High Court may, on its own motion or on the application of the dealer or any other interested person rectify any mistake in any order passed by him or it under this Act, apparent on the record, within three years from the date of the order sought to be rectified: Provided that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: Provided further that no such rectification, as has the effect of enhancing the assessment, penalty, fees or other dues shall be made unless reasonable opportunity of being heard has been given to the dealer or other person likely to be affected by such enhancement. (2) Where such rectification has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act making a charge at 15 per cent tax on the entry of paint and varnishes for the assessee. Against the order of the assessing authority passed under section 22 of the Act, the assessee filed an appeal under section 9 and although the assessee took up various pleas with regard to entry, the appeal of the assessee was dismissed on June 19, 1999. The assessee thereafter filed a second appeal under section 10 which has also been dismissed by the impugned order dated February 8, 2000, which is assailed in the present revision. The learned counsel for the assessee has argued that it is not within the scope of section 22 of the U. P. Trade Tax Act to make or pass order on issues which are debatable. He has argued that the jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen, obvious; plain. It means 'open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming'. A mistake which can be rectified under section 22 is one which is patent, which is obvious and whose discovery is not dependant on argument or elaboration. 13.. In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich 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 question of fact is not a mistake apparent from the record. The plain meaning of the word 'apparent' is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications ..... X X X X Extracts X X X X X X X X Extracts X X X X
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