2019 (7) TMI 1459

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....he order of rectification passed by the assessing authority subjecting the assessee to tax @ 12.5% on the goods Alpenliebe 1000, 1500, 200, 300, Stic, Freshtils, Chloromint, Chleodiet, Caramel Chocotella, Coffee Alienliebe Coffi Creamfills, Creamfills Xtra Mango, Fruitells, Lolly Pop, Bil Babool, Center Fresh, etc. 3. The present revisions were admitted on the following question of law: "Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in holding that while passing the original assessment order, the assessing authority has applied the rate of tax after application of mind and the same cannot be corrected under Section 31 of the Act under the heading mistake apparent on the face of record?" 4. Admittedly, the assessee filed its returns for assessment years in question disclosing turnover of sales of the commodities namely Alpenliebe 1000, 1500, 200, 300, Stic, Freshtils, Chloromint, Chleodiet, Caramel Chocotella, Coffee Alienliebe Coffi Creamfills, Creamfills Xtra Mango, Fruitells, Lolly Pop, Bil Babool, Center Fresh and others, declaring the same to taxable @ 4%. In support of its claim, the assessee has also conten....

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....stion may describe. Therefore, there could be no two opinions about the taxability of the commodity @ 12.5%. Consequently, the mistake is claimed to be self apparent as may not call for any doubt, deliberation or debate. 10. Opposing the aforesaid submission, learned counsel for the assessee would submit, for rectification of an error, it must be a mistake apparent from the record which is patent i.e. obvious and whose discovery is not dependent on any argument or alteration. He has relied on a Division Bench decision of this Court in M/s Varun Electronics Vs. State of U.P. & Ors. passed in Writ Tax No.1207 of 2012 decided on 16.08.2016 and also a decision of the Supreme Court in Mepco Industries Ltd., Madurai Vs. Commissioner of Income Tax & Anr.; (2010) 1 SCC 434 wherein relying on the Deva Metal Powders (Pvt.) Ltd. Vs. Commissioner of Trade Tax; (2008) 2 SCC 439, it had been laid down that rectification may be made only of a patent mistake whose discovery is not dependent on elaborate arguments. Accordingly, he submits, the issue of rate of tax would remain an arguable question and the same could not have been rectified in exercise of power under Section 31 of the Act. ....

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....e into existence or deeming fiction may come to life. That date has been defined or prescribed by the Act as the last date of the assessment year following the assessment year during which the last date to file the return for the relevant assessment year expired. 14. Thus, Section 27 of the Act does not contemplate coming into existence of any order, in any manner, neither by conscious exercise of power nor upon application of mind by the assessing authority. In fact neither an order is required to nor can be passed by the assessing authority and no order ever comes into existence. Rather, it is a pure legal fiction created by the legislature. Only the imagination in law gives birth to two effects or consequences of an assessment order. The imagination is driven, solely by the self-act of the assessee of filing his return of turnover. That solitary act needs no contribution or any corresponding or consequential or other act to be performed by the assessing authority. It gestates for one year from the end of the assessment year in which the last date to file that return expired. Upon completion of that period of time the imagination in law springs forth. 15. Thus, by way of fi....

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....ns of Section 31 of the Act. In this regard, Section 31(1) of the Act reads as below: "Section 31. Rectification of mistakes. - (1) Any officer, authority, the Tribunal or the High Court may on its own motion or on the application of the dealer or any other interested person rectify any mistake apparent on the face of record, in any order passed by him under this Act, within three years from the date of the order sought to be rectified: PROVIDED that where an application under this sub-section has been made within such period of three years, it may be disposed of even beyond such period: PROVIDED FURTHER that no rectification which has the effect of enhancing the assessment, penalty, fees or other dues, shall be made unless reasonable opportunity of being heard has been given to the dealer or other person likely to be affected by such enhancement." 19. Clearly, for a mistake to be rectified by the assessing officer, it had to be a mistake found in any order that may have been passed by him at an earlier point in time. For exercise of power under section 31, there had to pre-exist an order passed by him, upon conscious exercise of his powers to....