TMI Blog2010 (7) TMI 927X X X X Extracts X X X X X X X X Extracts X X X X ..... e to them in law to question the order in revision passed by the Deputy Commissioner dated July 7, 2008, the writ petition fails and is, accordingly, dismissed. - Writ Petition No. 10717 of 2010 - - - Dated:- 30-7-2010 - PRAKASH RAO B. AND RAMESH RANGANATHAN , JJ. ORDER:- The order of the court was made by RAMESH RANGANATHAN J. The order of the Sales Tax Appellate Tribunal, Hyderabad (STAT) in A.R. No. 38 of 2010 dated February 8, 2010, and the endorsement of the Deputy Commissioner (C.T) dated December 29, 2009 read with the revision order passed by him, under section 20(2) of the Andhra Pradesh General Sales Tax Act, dated July 7, 2008, are under challenge in this writ petition as ultra vires and illegal. The petitioner would seek a consequential direction to the Deputy Commissioner (C.T) to entertain the application submitted by them on October 20, 2009 and decide the same. Facts, in brief, are that the petitioner is an assessee on the rolls of the second respondent. For the assessment year 2004-05, the petitioner returned a turnover of Rs. 2,11,45,852, representing the first sale of sports goods, and accordingly paid tax of Rs. 21,61,357. The said turnover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in its order dated February 8, 2010, observed that the scope of an appeal, under section 21 of the Andhra Pradesh General Sales Tax Act, was confined to orders passed either under section 14(4) or section 20(2) of the Andhra Pradesh General Sales Tax Act, but not to an order or proceeding under rule 50 of the Andhra Pradesh General Sales Tax Rules. Aggrieved thereby, the present writ petition. Sri M.V.J.K. Kumar, learned counsel for the petitioner, would contend that, in view of section 38A of the Andhra Pradesh General Sales Tax Act, the petitioner was entitled to file an application under rule 50 of the Andhra Pradesh General Sales Tax Rules before the Deputy Commissioner, and his conclusion that the application as filed was not entertainable was without basis and was liable to be set aside. The learned counsel would submit that an order passed by the revisional authority, rejecting the rectification application under rule 50, was an order in revision appealable to the Tribunal; the power of the revisional authority to rectify the order passed by him was incidental to the power, conferred under section 20(2) of the Act, to revise orders; the Sales Tax Appellate Tribunal had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the Sales Tax Appellate Tribunal; section 21 provided for an appeal to the Sales Tax Appellate Tribunal against an order passed under section 19, or an order of the Additional Commissioner or the Joint Commissioner or the Deputy Commissioner under section 14 or section 20(2) of the Act; section 21 made no reference to rule 50 of the Andhra Pradesh General Sales Tax Rules, and merely stipulated that an order, under sections 19, 20(2) and 14 of the Act, could be appealed against under section 21; the endorsement dated December 29, 2009 was not appealable to the Sales Tax Appellate Tribunal under the Andhra Pradesh General Sales Tax Act; and, in the absence of a provision, the Tribunal lacked jurisdiction to entertain the appeal. Section 38A of the Andhra Pradesh General Sales Tax Act reads as under: 38A. Provision in the case of defective or irregular proceedings. No assessment made, penalty, or compounding fee levied or other order passed by any officer or authority under this Act, shall be set aside merely on account of any defect or irregularity in the procedure relating thereto, unless it appears that such defect or irregularity has in fact occasioned material hardshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or by necessary implication. (Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji [1971] 3 SCC 844 and Kewal Chand Mimani v. S.K. Sen [2001] 6 SCC 512). The question whether the order in revision suffers from an error of fact or law cannot be examined by the Deputy Commissioner himself as the Andhra Pradesh General Sales Tax Act, neither expressly nor by necessary implication, has conferred on him the power to review his own orders. Once a revisional order is passed the statutory remedy available to an assessee, to question the validity of the order in revision, is only by way of an appeal to the Sales Tax Appellate Tribunal and not under section 38A of the Act. It is evident, therefore, that section 38A has no application and cannot, by itself, form the basis for an application being filed by the petitioner before the Deputy Commissioner (CT) requesting him to rectify the mistake in his revisional order dated July 7, 2008. Rule 50(1) of the Andhra Pradesh General Sales Tax Rules enables any assessing, appellate or revising authority, at any time within four years from the date of any order passed by him, to rectify any clerical or arithmetical mistake apparent from the reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lerical or arithmetical errors does not empower the quasi-judicial authority to have a second thought over the matter, and to find that a better order could or should be passed. There cannot be a reconsideration of the merits of the matter to come to a conclusion that it would have been better, and in the fitness of things, to have passed an order as sought to be passed on rectification. It is to be confined to something initially intended but left out or added against such intention. (Jayalakshmi Coelho [2001] 4 SCC 181). Arithmetical mistake is a mistake of calculation and a clerical mistake is a mistake in writing or typing. Such omissions are attributable to the quasijudicial authority which may say something or omit to say something which it did not intend to say or omit. No new arguments or re-arguments on the merits are required for such rectification of mistake. (Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360 (SC); AIR 1966 SC 1047 and Jayalakshmi Coelho [2001] 4 SCC 181). A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court/Tribunal. It represents that which the court/Tribunal never intended to sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent is that it must be something which appears ex facie and 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 rectification (Deva Metal Powders (P) Ltd. [2007] 10 VST 751 (SC); [2008] 2 SCC 439). The Deputy Commissioner (CT), in his revisional order dated July 7, 2008, had computed tax at 12 per cent of the turnover. The petitioner would contend that the Deputy Commissioner had erred in doing so, and that tax should, instead, have been calculated at Rs. 2,11,45,852 x 12/112. Even if the Deputy Commissioner (CT) is presumed to have erred, it is not a clerical or arithmetical mistake apparent from the record which can be corrected by him under rule 50 of the Andhra Pradesh General Sales Tax Rules. The remedy available to the petitioner, against such an error, is only by way of an appeal against the order in revision (Bharat Coking Coal Ltd. v. Annapurna Construction [2003] 8 SCC 154). Section 21(1) of the Andhra Pradesh General Sales Tax Act enables any dealer, objecting to an order passed or proceeding re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Sales Tax Appellate Tribunal can entertain are only those falling within the ambit of section 21(1) of the Act. The power to rectify a mistake is specifically provided for in rule 50 of the Andhra Pradesh General Sales Tax Rules, and the Sales Tax Appellate Tribunal has rightly held that rejection of the request for rectification is an independent order against which an appeal lies only under section 19, and not under section 21 of the Act. The conclusion of the Sales Tax Appellate Tribunal that the appeal filed before it is not maintainable cannot be said to suffer from any infirmity necessitating interference under article 226 of the Constitution of India. The Sales Tax Appellate Tribunal has neither passed any orders on the merits nor has it examined whether or not the petitioner is entitled to have the tax computed at Rs. 2,11,45,852 x 12/112 instead of Rs. 2,11,45,852 x 12/ 100. The Sales Tax Appellate Tribunal has rejected the petitioner's appeal on two grounds. Firstly that the application filed by the petitioner does not fall within the ambit of rule 50 of the Andhra Pradesh General Sales Tax Rules. Secondly that an appeal does not lie to it under section 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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