9911796707
TMI Blog2016 (12) TMI 1703X X X X Extracts X X X X X X X X Extracts X X X X ..... al Sales Tax Act, 1948 (for brevity, "the Act"). 2. The petitioner is a registered dealer under the Sales Tax laws and is engaged in the business of manufacturing and sale of oil. For Assessment Year 1999-2000, it filed its returns of sales with the Assessing Authority, Ropar. The Assessing Authority framed assessment vide order dated 13.3.2002 and the refund of Rs. 1,07,382/- was issued. Subsequently, the Revisional Authority, in exercise of its powers under Sections 21(1) of the 1948 Act initiated suo motu action to rectify the order. After hearing the petitioner the Revisional Authority, Ropar, disallowed the claim of refund vide order dated 30.7.2003. 3. The petitioner filed Revision Petition before the Tribunal. The question before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 5(1-A) were to be taxed at the first stage of sale. Though Rule 29(i) was amended on 9.7.1993 to provide for deduction from the gross turnover of a registered dealer of the sale or purchase of goods which had already been subjected to tax under Section 5(1-A) or Section 5(3), but Rule 29(xii) only provided for deduction of the purchase value of goods which had been subjected to tax under Section 5(1-A). It was only on 15.4.2002 that Section 5(3) was included in Rule 29(xii). 5. It was argued before the Tribunal that the omission of Section 5(3) in Rule 29(xii) was clearly an inadvertent mistake, which was rectified vide notification dated 15.4.2002. Hence, the notification dated 15.4.2002 being in the nature of a clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12.8.2004 being Rectification Application No.34 of 2004-2005 under Section 21A of the Act for rectification of the order dated 30.4.2004. This time, the Tribunal, presided over by different officer, allowed the rectification application vide order dated 11.11.2004 holding as under:- "8. I have considered the facts of the case and submissions made by both the parries. I am convinced that the arguments advanced by the Learned counsel for the State are more appropriate to the facts of the case. A perusal of the order of the Tribunal clearly indicates that the Tribunal stretched its imagination beyond the legal frame work provided by law and has gone out of its way to make the amendment made in rule 29(xii) vide notification dated 15.4.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here being any such provision, was a patently wrong order, based on a wrong interpretation of law which could clearly be termed as a patent error. Hence the rectification application was maintainable. The earlier order dated of the Tribunal dated 30.4.2004 was modified and the revision petition was dismissed. 8. Ld. Counsel for the petitioner has argued that the order passed in the rectification application is wholly unsustainable. He argued that the jurisdiction under Section 21- A of the Act is limited to rectifying any mistake apparent from the record, but in this case the successor Presiding officer has entered into the merits of the controversy. The order reflects a change of opinion. The Ld. State counsel on the other hand argued tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rectification has the effect of reducing the amount of the tax or penalty, the Commissioner shall in the prescribed manner order the refund of the amount so due to such person. (4) Where any such rectification has the effect of enhancing the amount of the tax or penalty or reducing the amount of the refund, the Commissioner shall order the recovery of the amount due from such person in the manner provided for in section 11 and 11-B (Relevant Rules 63, 64)" As per this section, the Tribunal may, at any time within two years from the date of any order passed by it, rectify any mistake apparent from the record. This may be done either on its own motion or on the matter being brought to its notice by any person. 11. Similar provisions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be ascertained by a long-drawn process of reasoning. Similarly, this Court has decided in ITO v. Asok Textiles Ltd., that while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided. Moreover, incorrect application of law can also not be corrected." Similarly, in Mepco Industries Ltd. v. CIT, (2010) 1 SCC 434, it was held that decision on debatable point of law cannot be treated as "mistake apparent from the record". "18. Before concluding, we may state that in Deva Metal Powders (P) Ltd. v. CTT, a Division Bench of this Court held that a "rectifiable mistake" must exist and the same must be apparent from the record. It must be a patent mistake, which is obvious and whose discovery is not dependent on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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