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TMI Blog2015 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... , re-sale claim in respect of the assessment period 1994-95 and 1995-96 was also disallowed. Being aggrieved by the said orders, three appeals were preferred. Vide order dated 9.3.2001, the Appellate Authority dismissed the appeals and confirmed the orders passed by the first Appellate Authority. Being aggrieved thereby, three appeals were preferred before the learned Appellate Tribunal. The learned Tribnal vide order dated 29.1.2005, allowed the appeals and set aside the order passed by the Original Authority as well as the first Appellate Authority. The Revenue thereafter preferred the rectification applications, as aforesaid, which are allowed by the impugned order. Being aggrieved thereby, the present petition. 4. Shri Thakkar, learned counsel appearing on behalf of the petitioner submits that the scope of rectification application, as provided under Section 62 of the Bombay Sales Tax Act, is very limited. The learned counsel submits that the said powers can be exercised only for rectification of any mistake apparent from the record. The learned counsel further submits that by invoking the powers under Section 62, the Tribunal cannot direct retrial. Shri Thakkar relies on a Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the record in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tiruymale [ AIR 1960 SC 137] need to be noted: "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ." A bare look at Section 22 of the Act makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of Section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. 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." In the said case, initially, the assessee was assessed for the aluminum powder treating the same as a metal and as such holding him liable to pay tax at 2.2 %. In the rectification proceedings, it was held that the relevant entry would not include aluminum powder and as such the same was assessed treating the same to be an unclassified item. In this background, the aforesaid observation is made by the Apex Court. It has been held by the Hon'ble Apex Court that in order to attract the provisions of the Act, the mistake must exist and the same must be apparent from the record. It has been held that "Mistake" "means to take or understand wrongly or inaccurately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law. It is, now pointed out by the revenue through the rectification applications that so far as the periods 1993-94 and 1994-95 are concerned, the assessments were not made under section 33(3) of the Bombay Act. The assessments were made under section 33(2) by acceptance of the returns. In other words, the books of accounts for the relevant periods were earlier never produced before the Ward Officer and therefore, there was no question of the Ward Officer's having allowed the resale claim on the basis of verification of the appellant's books of accounts. Similarly, so far as the period 1995-96 is concerned, the appellant was not assessed by the Ward officer when the Enforcement Branch Officer completed his investigation. At that time, the assessment for the period 1995-96 was pending before the Ward Officer. Therefore, the assessment for the period 1995-96 was pending before the Ward Officer. Therefore, the assessment proceeding for that period were transferred from the Ward Officer to the Enforcement Branch Officer and it is the Enforcement Branch Officer who completed the assessment under section 33(3) of the Bombay Act. In other words, so far as the period 1995-96 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s assumption of fact. It is further to be noted that it is not even disputed by any of the parties that the error committed by the learned Tribunal is on an erroneous assumption of fact. These errors are such which can be seen with a necked eye. The errors are not of such a nature which would require detailed arguments to be advanced or a complicated process of investigation to be gone into, so as to unearth them. Any person with some understanding of law, can easily make out these errors. Not only that, but the learned counsel appearing on behalf of the assesesee in the rectification proceedings has also admitted that these errors have occurred in the order of which rectification is sought. In that view of the matter, we find that it cannot be said that the jurisdiction exercised by the learned Tribunal was exercised beyond the scope available to it under Section 62. 9. Insofar as the contention of the learned counsel that the learned Tribunal cannot recall the order is concerned, the Division Bench of this Court in the case of Commissioner of Sale Tax, Mumbai vs.Maharashtra Sales Tax Tribunal, Mumbai (cited supra), after considering the relevant provisions of law, has held thus ..... 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