Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s. D.S. Solanki Versus The Maharashtra Sales Tax Tribunal And Others

2015 (6) TMI 15 - BOMBAY HIGH COURT

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 the said Act. However, the assessments were .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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. For the Appellants : Mr Chandrakant Thakkar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 disallowed. Being aggrieved by the said orders, thre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

id, 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 6 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

hat 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 erroneous footing, the Tribunal has rightly allowe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as 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". A review is by no means an appeal in disguis .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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, appearing as real and true, conspicuous, man .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fore, 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 error. It is, no doubt, true that a mistake cap .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e" 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 ou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t, 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 assess .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rror 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 investigation, argument or proof. The Apex Court thus .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rcising 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 assessment proceeding and accordingly the resale clai .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 were not made under section 33(3) of the Bom .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fficer 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 concer .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nder 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 that these factual inaccuracies are in the f .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

urther 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 inaccuracies have crept in the order passed by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version