1972 (1) TMI 94

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....ock phosphate. The turnover in respect of that item was Rs. 14,01,966.34; and it was charged to tax at 3 per cent. The petitioner paid the whole tax as per the assessment. Subsequently, the petitioner filed an application, exhibit P-1 dated 31st December, 1966, before the second respondent, the Sales Tax Officer, III Circle, Mattancherry, to whom the petitioner's case had been transferred, under section 43 of the Act praying to rectify the order of assessment on the ground that the turnover of rock phosphate was chargeable to tax only at 2 per cent. and that the assessment at 3 per cent. in respect of that item was an error on the face of the record. The application also prayed for refund of a sum of Rs. 14,019.66, which represented the exc....

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....I am unable to appreciate the ground stated by him for rejecting the petitioner's application under section 43 of the Act. There can be no doubt that, if as a result of an error, the assessee happened to be assessed at too low a rate, the assessing authority, by virtue of his power under section 43 of the Act, would be entitled to rectify the error, correct the assessment and demand the proper tax that would be payable by the assessee. Similarly, if by mistake, the assessment has been made at a higher rate, then also, it is within his power under section 43 of the Act to rectify the mistake and refund the excess amount collected. The third respondent has also-power under section 35 of the Act to revise any order erroneously passed by a subo....

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.... only declined to invoke section 43 with the result that the original assessment for 1964-65 is left intact. The proper remedy in such a situation is to prefer an appeal before the appellate authority. (2) If as a matter of fact, the letter of the Sales Tax Officer dated 23rd March, 1967, is considered as proceedings under section 43, then such proceedings form only supplementary proceedings of assessment which have no separate existence independent of the original assessment. In this view also, the order dated 23rd March, 1967, is appealable. In any view of the matter, it is clear that the proper remedy available to the petitioner is by way of appeal." The Board of Revenue seems to have thoroughly misunderstood the legal position. Ex....