2005 (10) TMI 518 - HC - VAT and Sales Tax

High Court orders Tribunal to reconsider ground No. 37, emphasizing errors must be rectified under U.P. Trade Tax Act

Diomand Cement Versus Commissioner of Trade Tax, UP., Lucknow

Diomand Cement Versus Commissioner of Trade Tax, UP., Lucknow - [2007] 7 VST 421 (All) Issues:1. Application under section 22 of the U.P. Trade Tax Act, 1948 rejected by Tribunal.2. Non-consideration of ground No. 37 related to turnover of cement manufactured using fly ash.3. Whether the rejection of the application under section 22 of the Act was justified.Analysis:1. The revision under section 11 of the U.P. Trade Tax Act, 1948 was filed against the Tribunal's order rejecting the application under section 22 of the Act related to the assessment year 1997-98. The applicant, a cement manufacturer, claimed exemption from tax for cement manufactured using fly ash under Notification No. 592 dated February 28, 1998. The assessing authority and the first appellate authority did not accept the claim. The Tribunal's order dated June 5, 2004 did not consider ground No. 37 regarding the turnover of cement manufactured using fly ash, leading to the application under section 22. The Tribunal rejected the application stating that rectification under section 22 is only for mistakes apparent on the face of the record, not for debatable issues. The High Court considered the arguments of both parties and directed the Tribunal to hear and decide ground No. 37 afresh after giving proper opportunity of hearing to the parties.2. The applicant argued that the Tribunal failed to consider ground No. 37, which was raised in the grounds of appeal and argued during the hearing. The applicant contended that the failure to consider this ground was a clear mistake in the Tribunal's order, requiring rectification under section 22 of the Act. The Tribunal's rejection was based on the premise that only mistakes apparent on the face of the record could be rectified, not issues requiring lengthy arguments or investigations of fact. The High Court agreed with the applicant, emphasizing that the Tribunal must consider grounds raised in the appeal and argued during the hearing. Failure to address such grounds amounts to an apparent mistake that warrants rectification. Citing previous court decisions, the High Court directed the Tribunal to reconsider ground No. 37 after hearing both parties.3. The High Court found merit in the applicant's argument that the Tribunal erred in rejecting the application under section 22 of the Act. The Court clarified that the Tribunal's duty is to address all grounds raised in the appeal and argued during the hearing. Failure to consider such grounds constitutes a mistake on the face of the record, necessitating rectification. The Court highlighted that the issue of non-consideration of a ground raised in the appeal does not require lengthy arguments or investigations of fact for rectification. Relying on legal precedents, the High Court set aside the Tribunal's order and directed a fresh hearing on ground No. 37 to ensure proper consideration and decision-making process.