TMI Blog2015 (6) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee in the garb of application under section 37 in fact wanted review of the order which is impermissible. Reliance was placed upon the judgment rendered in the case of Ess Dee Carpet Enterprises v. Union of India [1989 (12) TMI 353 - SUPREME COURT] which in my view, is distinguishable, and even does not touch upon the controversy in hand, inasmuch as in that case, the honourable apex court was considering matter relating to the Employees Provident Fund and Misc. Provision Act - Even the said judgment only speaks of textile and how carpet comes within the definition of "textile" has even not been pointed out by the counsel for the assessee during the course of arguments. Merely mentioning that carpet is a textile and is exempt, does not bear out either from the record or from the submissions made by the counsel for the petitioner. Once the excess stock was found, admitted by the assessee an application for composition (compounding) having been moved which was accepted and attained finality, no mistake has been noticed at least in the order passed on August 16, 1997 which in my view, has rightly been rejected by the assessing officer and accordingly the present peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facie accepting approval memos to be correct, however, Shri Baldev Nagpal (partner) and authorized representative of the firm moved an application on the spot requesting for taking up the matter then and there and submitted a letter in writing on August 16, 1997 that a separate application of compounding (composition) is being submitted and accordingly moved an application after having gone through the material on record and understanding the provisions of section 77 and section 72(3) of the RST Act. This was a voluntary offer on the part of the partner and consequent thereto the assessee deposited composition amount to the extent of ₹ 4,26,015 (an amount of ₹ 26,015 in treasury on August 19, 1997 and ₹ 4,00,000 in the treasury on August 20, 1997). Since entire amount of composition (compounding) to the extent of ₹ 4,26,015 was deposited in the treasury, the subsequent proceedings were drawn and all subsequent proceedings had been dropped, the said order admittedly became final and was not assailed before any authority either by way of an appeal or otherwise. An application under section 37 came to be moved by the assessee on June 26, 1998, i.e., almost a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pet as such is exempt. Even otherwise the composition (compounding), was not proper rather the authorized officer ought to have guided the assessee. He further contended that the books of accounts were with the chartered accountant for audit purposes and therefore, time was sought for producing the record, but the authorized officer did not accept the contention for even producing the books of accounts, he further contended that the assessing officer has rejected the application under section 37 merely on the basis that the application has been filed after one year when he contended that under section 37 an application can be moved upto three years and when the time-limit of three years was granted, the application ought not to have been disposed of by observing that the application was belated. He further contended that the judgment of the honourable apex court in the case of Ess Dee Carpet Enterprises v. Union of India [1990] 1 SCC 461 is squarely applicable to the facts of the instant case. He further contended that there is no estoppel in law against a party in a tax dispute as held by the honourable apex court in the case of Dunlop India Ltd. Madras Rubber Factory Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad rightly been rejected as there was no mistake apparent on the face of record in order dated August 16, 1997. He further contended that under section 37 role is limited and contended that the original order dated August 16, 1997 was not assailed and has become final. He further contended that carpets are not exempt and the judgment of Ess Dee Carpet [1990] 1 SCC 461 is distinguishable on facts. He relied upon the judgment of the honourable apex court rendered in the case of Assistant Commercial Taxes Officer v. Makkad Plastic Agencies [2011] 42 VST 1 (SC); [2011] 4 SCC 750. I have considered the arguments advanced by the counsel for the parties and have perused the material available on record. Admittedly, during the course of survey proceedings, stock of silk carpet to the extent of 5517.375 square feet was found in excess and the assessee produced approval memos of silk carpet to the extent of 2974 square feet which had been received on approval, but despite being not satisfied with the approval memos as the same needed verification from the respective persons, however, the A. O. gave credit of the same and found silk carpet to the extent of 2543.375 square feet in excess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er necessary. S. 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 the Act may rectify suo motu or otherwise any order passed by him. Explanation.-A mistake apparent from the record shall include an 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 of the Supreme Court, the Rajasthan High Court or the Rajasthan Tax Board. (2) No application for rectification shall be filed under sub-section (1) after the 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 or Tax Board and a 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 rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 37 which was also a case under the RST Act, observed as under (page 7 in 42 VST): Both the aforesaid two decisions which were rendered while considering taxation laws are squarely applicable to the facts of the present case. It is also now an established proposition of law that 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 arefortified by the decision of this court in Kalabharati Advertising v. Hemant Vimalnath Narichania reported in [2010] 9 SCC 437. Section 37 of the Act of 1994 provides for a power to rectify any mistake apparent on the record. Such power is vested on the authority to rectify an obvious mistake which is apparent on the face of records and for which a re-appreciation of the entire records is neither possible nor called for. When the subsequent order dated January 22, 2009 passed by the Taxation Board is analysed and scrutinised it would be clear/apparent that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evidence of new facts which were not placed earlier. Rectification implies an error, mistake or defect which after rectification is made right. In my view, the order dated August 16, 1997 attained finality and at least there was no mistake apparent under section 37 in the order dated August 16, 1997 which needed rectification and this was rightly rejected by the assessing officer. The assessee in the garb of application under section 37 in fact wanted review of the order which is impermissible. Counsel for the assessee strongly relied upon the judgment rendered in the case of Ess Dee Carpet Enterprises v. Union of India [1990] 1 SCC 461 which in my view, is distinguishable, and even does not touch upon the controversy in hand, inasmuch as in that case, the honourable apex court was considering matter relating to the Employees Provident Fund and Misc. Provision Act and the honourable apex court held that: The non-inclusion of knotting in the Explanation to Schedule defining 'textiles' is, therefore, immaterial. No other point was pressed before us in this case. We, therefore, hold that the Regional Provident Fund Commissioner, the Government of India and the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X
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