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TMI Blog2016 (9) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment of tax. 2. The petitioner-assessee has raised several questions of law. In our view, only substantial law which arises for consideration is: "Whether the re-assessment was permissible under the head of "Rectification of the order in purported exercise of the power under Section 69 of Karnataka Value Added Tax Act, 2003 (hereinafter referred to as 'the Act') on the basis of a clarification issued by the Commissioner which itself is after the order of re-assessment dated 28.6.2010." 3. In order to appreciate the question, some reference of the facts may be required: The assessee who is dealing in fabrication of iron and steel gates and windows etc. as per Entry Sl.No.4 of the Sixth Schedule paid duty at the rate of 4% prevailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abrication work is MS or other iron and steel and further directed for collection of tax as per the observations made. Under the circumstances, the present petitions before this Court. 4. We have heard Mr.Keshavamurthy T.N., the learned counsel appearing for the petitioner and Mr.T.K.Vedamurthy, AGA appearing for the respondent. 5. Section 69 of the KVAT Act which would be relevant deserves to be reproduced and the same reads as under: "69. Rectification of mistakes: (1) With a view to rectifying any mistake apparent from the record, the prescribed authority, appellate authority or revising authority, may, at any time within five years from the date of an order passed by it, amend such order. (2) Any amendment which has the effect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered. It is undisputed position that in the present case, the basis of the rectification order is, the clarification of the Commissioner of Commercial taxes dated 21.2.2012. The re-assessment order was already passed in case of the petitioners on 28.6.2010. Therefore, the basis for exercise of the power for rectification under Section 69 which is the clarification of the Commissioner dated 21.2.2012 did not exist at all when the re-assessment order was passed on 28.6.2010. If any material which has come into existence after the order of re-assessment, apart from the aspects that the same was not the part of the record, even otherwise also could not be considered since the material has come into existence on 21.02.2012 after the order of re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record". If it relates to a fact, it should be possible to say "this is obviously a mistake". A decision on a debatable point of law will not however be a mistake apparent from the record. A point on which there is no decision of the Supreme Court or of the concerned High Court, and in regard to which two or more views are possible, is a debatable point of law. A point of law on which there is divergent views of other High Courts, is a debatable point of law. Hence there cannot be a rectification of an order, merely on the ground that a contrary decision was rendered on the point involved by a High Court other than the High Court of the concerned State. It is needless to point out that when a point is covered by a decision of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of jurisdiction for rectification observed at para.11 which reads as under: " "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 order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first appellate authority before the Tribunal shall fall to ground and cannot be sustained. Hence, the above referred question is answered in a manner that the no material which has come into existence after the order/re-assessment is passed can be made as the basis for exercise of power under Section 69 of the Act and accordingly, question is answered in favour of the petitioner-assessee against the revenue. 10. Resultantly, impugned order of the first authority-assessing authority under Section 69 dated 20.10.2014 (Annexure-B) as well as order passed by the first appellate authority dated 15.3.2014 (Annexure-C) and the order of the Tribunal 30.12.2015 (Annexure-A) shall stand set aside. The petitions are allowed accordingly. No order as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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