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2015 (6) TMI 15 - BOMBAY HIGH COURT

2015 (6) TMI 15 - BOMBAY HIGH COURT - TMI - Rectification of mistake - Whether the Tribunal has committed an error or not in exercising the powers under Section 62 of the said Act which are analogous to Section 22 of the U.P. Trade Tax - Held that:- Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order - Tribunal while deciding the Second Appeal proceeds on a footing that the assessment in question was made under Section 33(3) of .....

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in accordance with the basis of accurately recorded facts. No doubt, as held by the Division Bench, the power of recall cannot be resorted to review the order in the garb of rectification. However, if the learned Tribunal has passed the order on the basis of incorrect factual position, the learned Tribunal can very well pass the order after recording the correct factual position. - Decided against assessee. - Writ Petition No. 2779 of 2014 - Dated:- 28-4-2015 - B. R. Gavai And A. S. Gadkari,JJ. .....

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for the years 1993-94, 1994-95 and 1995-96. It is the contention of the petitioner that in the year 1999, the Revenue Authorities had initiated reassessment proceedings in respect of resale claim in respect of purchases from the vendors of the petitioner. Vide order dated 30.3.1999, re-sale claim allowed in respect of purchases from vendors was disallowed. Similarly vide orders dated 31.3.1999 and 29.11.1999, re-sale claim in respect of the assessment period 1994-95 and 1995-96 was also disallow .....

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d 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 .....

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for the Revenue, on the contrary, submits that the learned Tribunal has given sound and cogent reasons while passing the impugned order. The learned AGP for Revenue submits that the perusal of the impugned order would reveal that while deciding the Reference, an error apparent was committed by the learned Tribunal and as such, it was a fit case for exercise of jurisdiction under Section 62 of the said Act. The learned Counsel submits that since the order in Reference itself was passed on errone .....

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ourt while considering the said provisions has observed thus :- "This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur, [AIR 1964 SC 1372] held as follows:- "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by"error apparent". .....

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ct 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 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 h .....

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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 or inaccurately; 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, .....

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nder the provisions of Section 22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the record. In order to bring an application under Section 22, the mistake 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 err .....

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ts on questions of fact or law. "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 .....

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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 alu .....

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understanding, a misconception; to make an error in interpreting. It has been further held that a mistake which can be rectified under section 22 is one which is patent, obvious and whose discovery is not dependent on argument or elaboration. However, the Apex Court itself has held that the power under Section 22 of the said Act is not confined to clerical or arithmetical mistake. It is further held that it does not cover any mistake which may be discovered by a complicated process of investigat .....

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ribunal has committed an error or not in exercising the powers under Section 62 of the said Act which are analogous to Section 22 of the U.P. Trade Tax. It will be relevant to refer to following observation of the learned Tribunal :- "It appears that the impugned judgment is given on the footing that the appellant was originally assessed for the said periods under section 33(3) of the Bombay Act, on the basis of verification of the appellant's books of accounts produced in the assessmen .....

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Branch Officer, and thereafter on the basis thereof, issued reassessment notices, thereby proposing to pass necessary reassessment orders so as to withdraw the resale claims. It is on these facts, that the Fourth Bench held that the initiation of the reassessment was without any jurisdiction and hence the reassessment orders were bad 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 .....

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e 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 w .....

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4-95 were made under section 33(2) and not under section 33(3) as mentioned in the impugned judgment. He also admitted that the matter for the period 1995-96 does not involve reassessment and that the said matter had arisen from the assessment itself as passed by the Enforcement Branch Officer. According to him, these inaccuracies have crept in because the Tribunal's judgment was mainly with reference to the facts involved in the matter relating to the period 1992-93. He, however, submitted .....

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er Section 33(2) of the said Act. It could further be seen that even the lawyer who was representing the petitioner before the learned Tribunal in the rectification application, himself admitted that the original assessments were made under Section 33(2) and not under Section 33(3) of the said Act. The learned counsel further admitted that the period for 1995-96 does not involve reassessment and the said matter had arisen from the assessment itself. The learned counsel fairly stated that the ina .....

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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 th .....

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