9911796707
TMI Blog2015 (8) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... and perversely in allowing the rectification application of respondent and changing the entire order despite of debatable issue involved in the same. 2. Whether in the facts and circumstances of the case Rajasthan Tax Board was justified in law and has not acted illegally and perversely in allowing the rectification application u/s 37 of the Act despite of the facts that there was no mistake apparent from the face of record." 3. The brief facts of the case are that the respondent-assessee, is a contractor and claimed that it, being from outside the State, was not aware of the notification dt.29/03/2001 and therefore, could not file the option within time, however, the Assessing Officer was not satisfied with the explanation so offered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as moved and it was contended by Mr. Archit Bohra that entirely different view has been expressed by the Tax Board in the order impugned by not only considering the matter afresh when review in the garb of rectification is not permissible. He contended that the Tax Board has considered the issue afresh which cannot come within the definition of section 37. He relied upon the judgment of the Apex Court in the case of Asstt. Commercial Taxes Officer v. Makkad Plastic Agencies [2011] 185 ECR (GST) 166 (SC). 8. No-one has put in appearance on behalf of respondent despite service. 9. Having heard the counsel for the revenue and having perused the material on record including the order passed by the Tax Board dt.08/05/2007 and the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of a period of three years from the date of the order sought to be rectified. (3) Where an application under sub-section (1) is presented to the assessing authority, appellate authority and receipt thereof is obtained, it shall be disposed of within a period of one year from the date of presentation and where such application is not disposed of within the said period; the same shall be deemed to have been accepted. (4) No rectification under this section shall be made after the expiry of four years from the date of the order sought to be rectified. (5) An order of rectification which has the effect of increasing the liability of a dealer in any way, shall not be made without affording him an opportunity of being heard." 13. On pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar/apparent that the Taxation Board while passing that order exceeded its jurisdiction by re-appreciating the evidence on record and holding that there was no mala fide intention on the part of Assessee-Respondent for tax evasion. Such re-appreciation of the evidence to come to a contrary finding was not available under Section 37 of the Act of 1994 while exercising the power of rectification of error apparent on the face of the records." 14. The Hon'ble Apex Court in the case of CCE v. RDC Concrete (India) (P.) Ltd. [2011] 32 STT 426 (SC) has after considering the earlier judgments rendered by the Hon'ble Apex Court has held that the submissions which were made before the CESTAT by the respondent-assessee while arguing the rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther held in aforesaid judgment that for the aforestated reasons, they were of the opinion that CESTAT exceeded its powers and it tried to reappreciate the evidence and it reconsidered its legal view taken earlier in pursuance of a rectification application and in their opinion, CESTAT could not have done so while exercising its power under Section 35-C(2) of the Act, and, therefore, the impugned order passed in pursuance of the rectification application is bad in law and therefore, the said order is hereby quashed and set aside. 15. Under the Act Review is impermissible or coming to a totally different conclusion what was reached earlier. Earlier view cannot be changed in the garb of rectification unless there is a glaring and obvious mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible under rule 83 of the Rules." 18. In my view, rectification implies the correction of an error or removal of defects or imperfections and could not be used to appreciate the evidence on new facts which were not placed earlier. Rectification implies an error, mistake or defect which after rectification is made right. 19. In view of what has been observed herein above, the order of the Tax Board, by which the order has been rectified, certainly appears to be reviewing its own order and coming to a different conclusion than what was reached by the Tax Board earlier on 08/05/2007. 20. Consequently, the instant Sales Tax Revision Petition stands allowed. The question of law is decided in favour of the revenue by holding that the Tax Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
