2016 (6) TMI 1274 - HC - Service Tax

Rectification of mistake - principles of natural justice - Held that - the power under Section 74 of Finance Act to rectify a mistake cannot be put under a straight jacket formula and each case has to be tested on its own facts. What is a mistake apparent from the record will have to be decided based on the facts which are placed before the concerned authority. If the records produced by the petitioner prima facie show that there was sale of undivided share of the land, then the authority ought to have taken into consideration of the same and examined as to whether those could have been included in the total value. This undoubtedly is an error apparent on the face of the record - Furthermore, in their application under Section 74, the petitioner has specifically sought for a personal hearing which was also not been offered. The matter is remanded to the respondent to consider the application filed by the petitioner under Section 74 of the Finance Act, after granting an opportunity of personal hearing - petition allowed by way of remand.

Summary

Issues:
Challenge to order rejecting rectification application.

Analysis:
The petitioner challenged the order rejecting their application for rectification, which was related to the classification of services provided and the denial of exemption under Notification No.26/2012-ST. The petitioner contended that the value of land was included in the total amount charged, making them eligible for the exemption. They provided various records to support their claim, but the assessing authority did not find the evidence convincing. The respondent held that rectification under Section 74 of the Act could only be done for errors apparent on the face of the record, citing a Supreme Court decision.

The court observed that the power to rectify a mistake under Section 74 of the Finance Act should not be restricted to a rigid formula and must be based on the specific facts of each case. The petitioner had clearly stated that the land value was included in the amount charged, supported by documents submitted along with their reply to the show cause notice. The court noted that the respondent did not adequately consider the relevance of the records provided by the petitioner, leading to an error apparent on the face of the record. The court also highlighted that the petitioner had requested a personal hearing, which was not granted.

Consequently, the court allowed the writ petition, quashed the impugned order, and remanded the matter to the respondent for reconsideration of the application under Section 74, with the directive to provide a personal hearing to the petitioner. The court emphasized the importance of considering the records produced by the petitioner in determining the rectification of the mistake.