TMI Blog2015 (6) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 i/b. M M Vaidya, Adv. For the Respondent : Mrs Anjali Helekar JUDGMENT P.C. (Per B. R. Gavai,J. ) Rule. Rule made returnable forthwith. By consent heard forthwith. 2. The petition challenges the order passed by the learned Sales Tax Tribunal dated 4.6.2007 in Rectification Application Nos. 15, 16 and 17 of 2005 field by the Respondent-Revenue thereby allowing the Rectification Applications. 3. In the present case, we are concerned with the assessment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Commissioner of Sales Tax, Mumbai vs. Maharashtra Sales Tax Tribunal, Mumbai Ors. 2003 (5) Mh.L.J.93. 6. Their Lordships of the Apex Court in the case of Deva Metal Powders Pvt.Ltd. (cited supra) had an occasion to consider a pari materia provisions in U.P. Trade Tax Act. The Apex Court 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 . A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which states one in the face and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by this Court in Master Construction Co. (P) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments 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 and judiciously instructed mind can find out from the record. In o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned 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. 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 claim was allowed in the assessments. After these assessments, the appellant's place of business was visited by the Enforcement Branch Officers for certain investigation,in which the visiting officers seized the appellant's books of accounts for the particular periods. Thereafter the concerned Ward Officer visited the office of the Enforcement Branch Officer, verified the appellant's books of accounts which were in possession of the Enforcement 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal cannot be blamed for the said inaccuracies having reflected in the impugned judgment. He also asserted that these inaccuracies have no bearing on the final judgment. 8. It would thus be seen that the learned 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 made in fact under 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 inaccuracies have crept in the order passed by the learned Tribunal, since the inaccuracies are in the first appeal itself. It could thus be seen that in the facts of the present case, though the assessments were made under Section33(2) and not under Section 33(3), the Second Appeals were decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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