9911796707
TMI Blog2004 (6) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the eligibility certificate granted certificate of authorisation dated December 4, 1998. The petitioner being a registered dealer is required to file returns before the assessing officer, i.e., the Supreintendent of Taxes, Bongaigaon, as per the provisions of the Assam General Sales Tax Act, 1993. On the basis of the authorisation certificate issued by the Superintendent of Taxes, the petitioner submitted its return by producing all the books of accounts for the relevant period and the assessing authority being satisfied with the relevant records and upon hearing the petitioner completed the assessment by its order dated December 4, 1996 determining the tax payable as Nil. The petitioner was served with a notice dated July 15, 1998 issued by the Senior Superintendent of Taxes, Bongaigaon, in exercise of power under section 37(1) of the Assam General Sales Tax Act, 1993 for rectification of assessment for the years 1993-94, 1994-95, 1995-96 and 1996-97. In response to the notice, the petitioner raised objections urging various grounds by its letter dated September 9, 1998. This was followed by the impugned order dated September 5, 1998 raising a demand of Rs. 1,70,625 on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its own motion, rectify any arithmetical mistake or other mistake of a factual nature apparent from the record of the case, and shall even beyond such period, rectify any such mistake as is brought to its notice by a dealer or person affected by such order before the expiry of such time-limit: Provided that no such rectification shall be made having the effect of enhancing the assessment unless the authority concerned has given notice to the dealer or person of its intention so to do and has allowed him a reasonable opportunity of being heard." On a plain reading of the aforesaid provision of section 37(1), the authority is empowered to rectify any arithmetical mistake or other mistake of a factual nature apparent from the record of the case. The question that arises for consideration is, whether there was any such arithmetical mistake or any other mistake of a factual nature apparent on the face of the record in the first order of assessment dated December 4, 1996 warranting interference with the same in exercise of power under section 37(1) of the Act. It is in this context the aforesaid decisions have been pressed into service. Before adverting to the impugned orders an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 12. It further went on to observe that a decision on a debatable point on law or failure to apply the law to a set of facts which remains to be investigated cannot also be corrected by way of rectification. It further observed that such mistake should not be the one which calls for detailed investigation of facts or law or elaborate argument to establish the same. In the case of Commercial Taxes Officer v. Deputy Controller of Stores, Western Railway [1994] 93 STC 1, also the Rajasthan High Court dealing with the pari materia provisions under the Rajasthan Sales Tax Act reiterated the above principles. In the case of Manjushree Extrusions Limited [2001] 123 STC 366 (Gauhati), this Court dealing with the question of exemptions granted under the 1991 Industrial Policy to both new and existing industrial units and subsequent restriction imposed on such exemption, while allowing the writ appeals held such restriction to be inconsistent with the Industrial Policy of 1991. In the instant case also it is the case of the petitioner that in the first assessment order for the period 1993-94, the assessing authority found the petitioner to be entitled to get the benefit of tax holiday unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST Acts for the period up to June 17, 1996 with effect from June 18, 1991. Hence, your notice is also seems to be unwarranted and bad in law." In the impugned order dated September 5, 1998 while recognising the entitlement of tax exemption under the 1995 Scheme effective from April, 1991, it has been held that the benefit under the scheme in respect of the finished products shall not be admissible to an eligible industrial unit in terms of para 10 of the 1995 Scheme. Para 10 of the Scheme as reflected in the impugned order itself provided that a holder of the certificate of authorisation shall not collect sales tax on his sales from the portion of the finished products, which is declared eligible for sales tax exemption in the certificate of authorisation. According to the impugned order, the petitioner did not disclose the base year production after commencement of production on expansion/diversification/modernisation. However, it is admitted in the impugned order that there was no mention of base year production vis-a-vis sales tax exemption, but since the petitioner's unit was in continuity prior to notifying 1995 scheme in the official gazette with effect from August 16, 1995 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxes on sales on base year production and upheld the reassessment order dated September 5, 1998. The order dated September 5, 1998 does not speak of any arithmetical mistake or any error apparent from the record of the case. It gives altogether a new argument and reasoning. The petitioner in course of the first of assessment submitted its returns under section 16 of the Act disclosing its gross turnover and the same was accepted upon examination of the books of account, documents and evidences produced in that respect and the assessment was completed under section 17(4) of the Act. The impugned order that was preceded by the notice does not reflect any arithmetical mistake or any factual mistake apparent from the records. The entire process was carried out by way of innovation and re-argument. The petitioner took the specific plea in his reply that while granting the certificate of authorisation, the petitioner was authorised to purchase raw materials and sale of finished goods free of tax under the Act and the Central Sales Tax Act for the period up to June 17, 1998 with effect from June 18, 1991. However, nothing has been stated in the impugned orders about this aspect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
