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Assistant Commissioner Works Contract & Leasing Tax, Alwar Versus P.N.C. Construction

2015 (8) TMI 201 - RAJASTHAN HIGH COURT

Rectification of mistake - Tax Board changes the order stating it to be rectification - Held that:- Tax Board was not justified in passing the impugned order by holding that a mistake apparent on the face of record, was committed by the Tax Board in order dt.08/05/2007 and has corrected the earlier order of the Tax Board dt.08/05/2007 - Tax Board in the impugned order has considered what was not before the Tax Board who decided the appeal vide order dt.08/05/2007. In my view, only a mistake appa .....

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ot be such which can be established by a long-drawn process of reasoning.

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 mistake apparent on the face of record - 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 pla .....

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question of law:- "1. Whether in the facts and circumstances of the case of Rajasthan Tax Board was justified in law and has not acted illegally 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 de .....

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DC (A) also upheld the finding of the Assessing Officer and came to the conclusion that the option given by the assessee, was almost after two years, being opted on 11/03/2004 whereas the assessment pertains to the year ended on 31/03/2002 and accordingly rejected the contention of the assessee. However, the DC (A) held that benefit to the extent of 30 lakhs is to be granted in view of the notification and beyond 30 Lakhs the turnover tax and surcharge was upheld. 5. The assessee carried the ma .....

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der of the Assessing Officer as well as the ld. DC (A). 7. Ld. counsel for the revenue contended that all the three authorities in unison had come to the conclusion including the Tax Board that the assessee is not entitled to the benefit of exemption on the basis of notification dt.29/03/2001 and once the order was passed by the Tax Board, it is much later that an application for rectification was moved and it was contended by Mr. Archit Bohra that entirely different view has been expressed by t .....

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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 order dt.27/01/2009, in my view, the Tax Board was not justified in passing the impugned order by holding that a mistake apparent on the face of record, was committed by the Tax Board in order dt.08/05/2007 and has corrected the earlier order of the Tax Board dt.08/05/2007. 10. I have perused the impugned order and notice that the Tax Board in the impugned .....

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e to quote section 37 of the RST Act:- "Section 37. Rectification of a mistake- (1) With a view to rectifying any mistake apparent from the record, any officer appointed or any authority constituted under this Act may rectify suo motu or otherwise any order passed by him. Explanation. - A mistake apparent from the record shall include order which was valid when it was made and is subsequently rendered invalid by an amendment of the law having retrospective operation or by a judgment Supreme .....

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ithin 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 perusal of the above Section, it is quite clear that the scope of rectification, in my view, is limited an .....

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at review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible. In coming to the said conclusion we are fortified by the decision of this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors. reported in [2010] 9 SCC 437. Section 37 of the .....

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ting 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 re .....

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on behalf of the parties was changed by CESTAT. There was no mistake apparent on record when CESTAT did not accept a submission of the respondent assessee to the effect that the officer appointed to value the goods manufactured by the assessee should not have been engaged as a cost accountant. 14.1 After noticing the aforesaid fact the Apex Court in above judgment after taking into consideration several cases held that a mistake apparent on record must be an obvious and patent mistake and the mi .....

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iew of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected. 14.2 The Hon'ble Apex Court further 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 Secti .....

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held as under:- "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions." 16. The Hon'ble Apex Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [1960] 1 SCR 890 ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opi .....

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