AI Drafter 
TaxTMI 
TaxTMI 
2017 (9) TMI 62
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....ceived by the revisionist from the lessee was not amenable to tax on transfer of the right on the goods under Section 3F, however, the Tax Authorities levied tax on the rent. Aggrieved, revisionist preferred an appeal, inter alia, contending that Section 3F has been declared ultra vires, therefore, assessee is not liable to pay tax on lease rent. The appellate authority remanded the matter to the Assessing Authority for decision afresh, both on the question of applicability of Section 3F and on certain other claims. The Assessing Authority vide assessment order dated 29 March 2003 accepted the plea of the revisionist that tax under Section 3F was not imposeable as the provision was declared ultra vires. However, the assessee, aggrieved, on issues other than lease rent filed an appeal. The 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 ....
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....e and upon considering the material available on record, appellate authority imposed tax on the lease rent, the order is lawful and legal, therefore, calls for no interference. On plain reading of Section 22 of the Act makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of Section 22, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen, obvious; plain. It means "open to view, visible, evident, appears, 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 mea....
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....d. In the given facts of the case, the evidence which was on record was duly appreciated by the Tribunal at 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. In Honda Siel Power Products Ltd. v. Commissioner of Income Tax, Delhi5, there also the Tribunal had not considered certain material which was very much on record, thereby, it committed a mistake which was subsequently rectified by considering and appreciating the evidence which had not been considered earlier. This Court in ITO v. Ashok Textiles6, held 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. In CCE 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. ....
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....placed on Section 9 which provides for appeal. Any dealer or any other person aggrieved by an order made by the Assessing Authority, may, within 30 days from the date of service of copy of order, appeal to such authority as may be prescribed. Sub-clause (3) requires the appellate authority after calling for and examining the relevant records and after giving the appellant and Commissioner a reasonable opportunity of being heard may confirm such order. In the backdrop of the provisions under Section 9, 10B and 21, it is sought to be urged by the learned counsel for the revisionist that under the garb of Section 22, the Assessing Authority cannot cover up its omissions or lapses which could have been corrected or taken care of under the aforementioned provisions. I do not find any merit 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 notic....