TMI Blog2017 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ot dependent on argument or elaboration. The ambit and scope of Section 22 is distinct and different, the section does not confer power of appeal or revision as contemplated under Section 9 or 10B of the Act respectively. Nor does Section 22 confer power upon the assessing authority to assess or reassess the dealer on whole or any part of the turnover of the dealer that has escaped assessment to tax or has been under-assessed or has been assessed to tax at a lower rate or any deduction or exemption has wrongly been allowed. Section 22 merely confers upon all the authorities under the Act to rectify any mistake that has crept into the order which is apparent on the face of the record. The rectification can be sought by a dealer or by a person interested which in my opinion would include the assessing authority. The assessing authority can rectify the mistake in its order on its own motion, but where the order is subjected to challenge in appeal and the appellate authority has disposed of the appeal, then in that event the assessing authority being the interested person is empowered to move an application for rectification. The second proviso requires providing opportunity of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First Appellate Authority dismissed the appeal on 18 December 2003. The issue of liability of tax on lease rent was neither canvassed nor decided by the appellate authority. After decision by the appellate authority, the Assessing Authority filed an application on 17 April 2003, purportedly under Section 22 of the Act for rectification of mistake in the appellate order, contending that levy of tax under Section 3F escaped assessment, though U.P. Act 11 of 2000, notified on 30 April 2001, validated all actions and assessments made under Section 3F during 1 May 1987 to 1 March 1997. It was set out in the application that though the validation Act was enforced, however, since the notification was not received, therefore, escaped assessment under Section 3F. It was, therefore, urged before the appellate authority that it was a mistake apparent on record. The appellate authority allowed the rectification application by order dated 25 July 2005, thereby, imposing tax on leased rent. Aggrieved, revisionist approached the Tribunal in second appeal which was dismissed by the impugned order. The Tribunal upheld the application being maintainable under Section 22 for the reason that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, appearing as real and true, conspicuous, manifest, obvious, seeming. 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. Supreme Court in Deva Metal Powders (P) Ltd. vs. Commissioner, Trade Tax, Uttar Pradesh2, observed as follows: In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order...............Section 22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under Section 22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Belapur, Mumbai vs. RDC Concrete (India) P. Ltd7, Supreme Court in the given facts held that the evidence on the record was duly appreciated by the Tribunal in the first instance but the Tribunal made an effort to re-appreciate the evidence and re-appreciation can never be considered as rectification of a mistake. A decision on a debatable point of law cannot be a mistake apparent from record. This Court in Commissioner Sales Tax, U.P. vs. S/s Hind Lamps Ltd. Shikohabad8 in paragraph 6 held as follows: 6. It is not in dispute that the entry bullion and specie including old ornaments meant for melting as provided in the Notification dated 7 September 1981 was substituted retrospectively w.e.f. 7 September 1981 by Section 11 of the U.P. Ordinance No. 8 of 1987 and the qualifying words meant for melting was omitted. Thus all old ornaments were made liable to tax at the point of first purchase. Thus a mistake which is apparent on the record in the order of the Tribunal has crept in view of the retrospective amendment in law. It is well settled that if any amendment is made which has retrospective effect, the order passed by the authority on the basis of pre-existing law is li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit in the submission of the learned counsel for the revisionist. It is admitted that Section 3F was applicable on the turnover of the assessee, which escaped assessment on a bona fide belief, at the behest of the assessee, that the provision was declared ultra vires. However, subsequent Amendment Act restored Section 3F and validated all actions and assessment thereunder, which was not in the notice of the Assessing Authority. Upon noticing the apparent error an application under Section 22 was filed for rectification of mistake apparent from record. Sub-section (1) of Section 22 provides that any Officer/Authority/Tribunal/High Court or any interested person may suo moto or on an application of the dealer or any other interested person rectify any mistake in any order passed by him or it under the Act. Second proviso to the section requires that no such rectification having the effect of enhancing the assessment/penalty/fee or other dues shall be made unless reasonable opportunity of being heard has been given to the dealer or the other person likely to be affected. The ambit and scope of Section 22 is distinct and different, the section does not confer power of appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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