2011 (12) TMI 187 - HC - VAT and Sales Tax

Delhi Value Added Tax, 2004 applicability of Section 23(7) to remand assessment Section 23(7) inserted w.e.f. 27.8.2001 - Tribunal reversed their earlier order dated 04.07.2008 in respect of A.Y. 1984-85 under an application made for rectification u/s 48 of the Delhi Sales Tax Act, 1975 Tribunal in the order dated 19.8.2010 interpreted the proviso to Section 23(7) and has held that period of limitation described for completion of assessment proceedings on remand was two years u/s 23(7). Held that - In order dated 4.7.2008, on interpretation of Section 23(7) and its proviso thereto, it was held that the A.O. should have passed an order on remand within one year and nine months. This is a clear and categorical finding in the order dated 4.7.2008. The said finding may be erroneous or incorrect but is not a mistake that can be rectified in exercise of jurisdiction u/s 48 of the Act. It can be made subject matter challenge in an appeal and can be correct by the appellate forum only. The Tribunal in the impugned order dated 19.8.2010 has virtually re-examined the Section 23(7) and the proviso thereto and reinterpreted the same and held that their earlier decision was incorrect. This is not permissible and outside the scope and ambit of power under Section 48, which is limited to correction of mistake apparent from the record. Section 48 is not an appellate power Decided in favor of appellant.

Summary

Issues:
1. Interpretation of Section 48 of the Delhi Sales Tax Act, 1975 for rectification of orders.
2. Applicability of the first proviso to Section 23(7) of the Act in remand assessments.
3. Jurisdiction of the Tribunal to re-examine and reinterpret previous decisions under Section 48.

Analysis:

Issue 1: Interpretation of Section 48 of the Delhi Sales Tax Act, 1975 for rectification of orders:
The appeal under Section 81 of the Delhi Value Added Tax, 2004 challenged the Tribunal's order allowing rectification under Section 48 of the Act. The Tribunal rectified the date of the order in Appeal No. 669/STT/99 from 12.11.2001 to 31.5.2002, citing an apparent error. The High Court agreed that rectification under Section 48 was justified, as the Tribunal had the power to correct mistakes apparent from the record. The Tribunal's rectification was based on factual evidence of the order's date, supporting the exercise of their jurisdiction under Section 48.

Issue 2: Applicability of the first proviso to Section 23(7) of the Act in remand assessments:
The dispute revolved around whether the first proviso to Section 23(7) applied to the remand assessment. The Tribunal initially held that the proviso was applicable, rendering the remand assessment beyond the prescribed time limit and quashing it. However, in a subsequent order, the Tribunal reinterpreted Section 23(7) and held that the proviso did not apply to the assessment year in question (1984-85). The High Court concurred, emphasizing that statutory provisions must be construed as per their plain meaning, and no additional provisions could be read into the statute. The Tribunal's re-examination and reinterpretation of the proviso were deemed beyond the scope of rectification under Section 48.

Issue 3: Jurisdiction of the Tribunal to re-examine and reinterpret previous decisions under Section 48:
The High Court clarified that Section 48 allowed rectification of mistakes apparent from the record and not a re-evaluation of debatable issues. The Tribunal's re-examination of Section 23(7) and the proviso in the subsequent order was deemed impermissible under Section 48. The High Court highlighted that rectification under Section 48 was not an appellate power and could not be used to revisit and reverse earlier decisions based on differing interpretations. The Tribunal's action in reinterpreting the law in the later order was considered ultra vires Section 48.

In conclusion, the High Court ruled in favor of the appellant, emphasizing that rectification under Section 48 was limited to correcting mistakes evident from the record and not for revisiting debatable legal interpretations. The Tribunal's re-examination and reinterpretation of the law in a subsequent order were held to be beyond the scope of Section 48. The revenue was given the option to challenge the original order in accordance with the law.