2024 (2) TMI 951 - HC - VAT and Sales Tax

Rectification of mistake - exercise of Revisional Jurisdiction - Power of review - seeking rectification of assessment order on the ground that the Assessing Authority had wrongly taxed the sale of wheat flour at the rate of 3% instead of 2%, as provided under the Act by virtue of Notification dated 28.09.1989 - HELD THAT - A perusal of Section 33 of HGST Act, 1973 would reveal that the same provides for rectification of clerical mistakes and errors. The Assessing Authority or any such authority, as may be prescribed, may rectify any clerical or arithmetical mistake apparent from the record, at any time, within two years from the date of any order, passed by him and subject to such conditions, as may be prescribed. Further, Section 40 of HGST Act, 1973, empowers the Commissioner to call on his own motion for the record of any case pending before, or disposed of, by any officer appointed under sub-section (1) of Section 3 of HGST Act, 1973 to assist him or any Assessing Authority or Appellate Authority, for the purposes of satisfying himself as to the legality or to propriety of any proceedings or of any order made therein and may pass such order in relation thereto, as he may think fit. As far as rectification of an order is concerned, the same can be done by the concerned authority within a period of two years from the date of the order. As regards the initiation of revisional proceedings is concerned, the said power is circumscribed by the first proviso as well as third proviso to Section 40 (1) of HGST Act, 1973, in as much as that the order, which is sought to be revised, cannot be revised after the expiry of five years from the date of the order and in terms of third proviso to Section 40 (1) of HGST Act, 1973, the assessee or any other person shall have no right to invoke revisional power under this sub-section. As regards the scope and ambit of exercise of revisional jurisdiction under Section 40 of HGST Act, 1973 is concerned, same is no more res integra as the same was considered by a Division Bench of this Court in MAHABIR TECHNO LIMITED VERSUS THE STATE OF HARYANA AND ANOTHER 2016 (8) TMI 298 - PUNJAB AND HARYANA HIGH COURT wherein it was held that The proceedings initiated for revision of the orders of assessment having not concluded within the period of five years from the date of order sought to be revised, as envisaged under Section 40 of the Act, the Revisional Authority now does not have any jurisdiction to pass the order. In view of aforesaid judgment rendered in the case of Mahabir Techno Limited, it is manifest that in case the revisional proceedings are initiated by the Revisional Authority under Section 40 (1) of HGST Act, 1973, the same are required to be concluded within a period of five years from the date of the order sought to be revised and after the expiry of the said period of five years, the Revisional Authority does not have any jurisdiction to pass any order. Apparently, in the instant case, the Revisional Authority had initiated the revisional proceedings in respect of assessment order dated 17.07.1992 with regard to Assessment Year 1991-92, however, since revisional proceedings were not concluded within a period of five years i.e. upto 17.07.1997, the same were rightly dropped by the Revisional Authority, vide its order dated 20.03.2001. The power to review was available with the Tribunal below in terms of Section 41 of HGST Act, 1973 and the errors apparent on the record have been culled out by the Tribunal below in its order dated 28.08.2017 - The Tribunal below has correctly appreciated the facts as well as law on the issue and the Tribunal below was fully justified in exercising its review jurisdiction in passing the order dated 28.08.2017 - there are no illegality or perversity in the order dated 28.08.2017 (Annexure A-13), passed by the Tribunal below, which has been rendered after correctly appreciating the facts and as well as the law. There is no merit in this appeal and the same is accordingly dismissed.

Summary

Issues Involved:

1. Wrong Tax Rate Application by Assessing Authority
2. Rectification Application by Appellant
3. Revisional Proceedings by Deputy Excise and Taxation Commissioner
4. Tribunal's Decision on Appeals
5. Review Application by State
6. Tribunal's Review and Final Decision

Summary:

1. Wrong Tax Rate Application by Assessing Authority:
The appellant, M/s Panchkula Roller Flour Mills (P) Ltd., challenged the assessment order for the year 1991-92, claiming the Assessing Authority taxed wheat flour at 3% instead of the prescribed 2%.

2. Rectification Application by Appellant:
The appellant filed a rectification application on 20.06.1995, asserting the tax rate error. The application was beyond the two-year limitation period specified under Section 33 of the HGST Act, 1973.

3. Revisional Proceedings by Deputy Excise and Taxation Commissioner:
Revisional proceedings were initiated by the Deputy Excise and Taxation Commissioner, Ambala, but were dropped on 20.03.2001, as they were not concluded within the five-year limitation period under Section 40 of the HGST Act, 1973.

4. Tribunal's Decision on Appeals:
The appellant's appeals for the years 1990-91 and 1991-92 were allowed by the Tribunal on 05.12.2001, remanding the cases back to the Revisional Authority.

5. Review Application by State:
The State filed a review application against the Tribunal's order. The Tribunal, in a split decision, referred the matter to a Larger Bench, which allowed the review application on 28.08.2017, dismissing the appellant's appeal.

6. Tribunal's Review and Final Decision:
The Tribunal held that the revisional proceedings were time-barred and that the appellant's rectification application was beyond the limitation period. The Tribunal also emphasized that the assessee had no right to invoke revisional powers and should have appealed the assessment order within the prescribed time. The High Court upheld the Tribunal's decision, finding no illegality or perversity in the order dated 28.08.2017, and dismissed the appeal.