TMI Blog2015 (9) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 30th October, 2001 and in respect of transactions which took place thereunder, rate of tax is Nil in regard to sales against Form 3-B – AO sought to revisit assessment on basis that notification dated 07.02.2000 would be notification which is applicable – If original assessment was afflicted with error apparent, undoubtedly, power under section 22 could have been exercised – That, in turn, would depend upon question as to whether word in notification is susceptible of only one meaning – As noticed, present debate is that notification is capable of another meaning, then matter passes from realm of being undisputed to realm of dispute – If that being so, revenue would not have authority to correct any kind of mistake but only mistake whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate before the Tribunal was not successful and it is feeling aggrieved that the State is before us. 3. We heard learned Additional Advocate General for the State Shri A.S. Rawat and learned Senior Counsel for the revisionist Shri Dhruv Agarwal. 4. Learned Additional Advocate General would submit, what has happened, is as follows: The State of U.P. was bifurcated into two under Section 9 of the Reorganization Act, 2000 and the State of Uttarakhand was born on 09.11.2000. On 07.02.2000 while the State was undivided, the State of Uttar Pradesh had issued a notification that in respect of sales against Form 3-B under the Act, the rate of tax would be 2.5%. Subsequently, the State of Uttar Pradesh, in exercise of its powers under the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial, processing material, consumable stores, spare-parts, accessories, components, fuel or lubricants and packing material to the dealer having his place of business in the State of Uttar Pradesh and possessing recognition certificate issued under Section 4-B of Uttar Pradesh Trade Tax Act, 1948 (Act No.XV of 1948), whose validity commences prior to November 9, 2000 for the use in the manufacturer of goods or in the packing of goods manufactured by him, shall be calculated at such rate as would have been leviable on such sales against Form 3-B prescribed under the said U.P. Act No.XV of 1948, subject to the condition that that dealer selling the goods furnishes the declaration in Form C , or, as the case may be, the certificate in Form D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where it is not indisputable. In other words, if a dispute is raised, resort to Section 22 of the Act is impermissible in law. In this regard he drew our attention to the judgment of the Apex Court, reported in (2008)2 Supreme Court Cases, 439 (Deva Metal Powders (P) Ltd. versus Commissioner, Trade Tax, Uttar Pradesh) which, according to him, arose under the very same provision, namely, Section 22 of the Act, wherein we notice the following paragraphs: 6. Learned counsel for the appellants submitted that this is a case where Section 22 of the Act had no application. The said provision is only applicable to a case where the error is apparent on the face of the record; where the issue cannot be decided in an undisputable manner, Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eming . A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. 7. Learned Senior Counsel for the respondent would also submit that actually this is a case where the notification dated 26.12.2000 countenances the applicability of the principle of incorporation by reference and he would refer to the judgment of the Apex Court, reported in (1978) 2 Supreme Court Cases 542 (Bajaya versus Gopikabai And Another). It reads as follows: Legislation by referential incorporation falls into two categories, (a) where a statute by specific reference incorporates the provisions of another statute as at the time of adoption; and (2) where a statute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the revisionist, but we notice in the order issuing notice only one following substantial question of law is framed: Whether the commercial tax tribunal has erred in law in holding that the assessing authority cannot rectify its earlier order under Section 22 of the U.P. Trade Tax Act, by invoking the jurisdiction under Section 9(2) of Central Sales Tax Act? 10. Therefore, we are only concerned with the question, whether the reviewing of the matter under Section 22 of the Act was permissible. 11. We have already noticed the facts. The assessment was completed, apparently, keeping in mind the notification issued by the State of Uttar Pradesh in 2001, no doubt, but it was the notification, which would govern the sales in the sen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
