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TMI Blog2014 (5) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 was passed by the Additional Commissioner giving permission for re-assessment under section 21(2) of the U.P. Trade Tax Act, 1948 (hereinafter referred to as '1948 Act'). The order of the Additional Commissioner stated that certain forms -C which were submitted by the petitioner could not be verified resulting non imposition of tax on full rates in the earlier assessment. A similar order dated 27.4.2007 was passed under section 21(2) with regard to assessment year 1999-2000 (U.P.). The petitioner filed writ petition in this Court being writ petition Nos. 635 (Tax) of 2004 and 636 (Tax) of 2004, challenging the orders dated 23.4.2004 and 27.4.2004 in which interim order was passed by this Court. Ultimately vide judgment and order dated 15.7.2010 both the writ petitions were dismissed. Subsequent to the dismissal of the writ petition, a composite notice dated 20.11.2010 was issued for re-assessment both under U.P. and Central. The petitioner again filed writ petitions being Writ Tax No. 192 of 2011 and Writ Tax No. 193 of 2011 seeking a direction to supply the relevant documents to the petitioners as prayed for by means of an application. The said writ petitions were dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons, on which application the assessing authority was required to pass an order as per judgment and order of this Court dated 9.2.2011 passed in Writ Tax No. 192 of 2011. Assessing Officer without deciding the application has passed the re-assessment order. Learned Counsel for the petitioner in support of his above submissions placed reliance on several judgements of the apex Court and this Court, which shall be referred to while considering the submissions in detail. Sri S.P. Kesharwani, learned Counsel for the State refuting the submissions of learned Counsel for the petitioner, contended that there is no error in the order dated 25.11.2011 rectifying the mistake in the order dated 24.2.2011 and making re-assessment since by order dated 24.2.2011 re-assessment notice with regard to re-assessment year 1999-2000 for Central was also wrongly withdrawn, whereas the said order ought to have confined only to re-assessment notice for State. He submits that in the order dated 24.2.2011 only consideration was made of the permission order of the Additional Commissioner dated 27.4.2004, which related to the the re-assessment for State only and by mistake notices of re-assessment for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting permission for re-assessment for the year 1999-2000 (provincial). As noted above, against both the orders, writ petitions were filed by the petitioner in this court which were dismissed on 15.7.2010. It is useful to quote the operative portion of the order of this Court which is to the following effect: "In the facts and circumstances of the case, we are of the view that there was sufficient material on record for the assessing authority to form a belief of escaped assessment and to initiate the proceeding under section 21 of the Act. The initiation of proceeding under section 21 are accordingly upheld. On the facts and circumstances of the case, we are not incline to interfere in the matter. However the petitioner is directed to participate in the re-assessment proceedings and submit its reply before the assessing authority. It is expected from the assessing authority to consider the submissions of the petitioner on merits and in accordance with law while passing orders on re-assessment proceedings. Both the writ petitions are, accordingly, dismissed. Interim orders are discharged." Subsequent to the dismissal of the aforesaid writ petitions, a composite notice dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch rectification, as has been 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. (2)Where such rectification has the effect of enhancing the assessment, the assessing authority concerned shall serve on the dealer a revised notice of demand in the prescribed form and therefrom all the provisions of the Act and the Rules framed thereunder shall apply, as if such notice had been served in the first instance." From the facts as noticed above, it is clear that two separate orders were passed for re-assessment for Central and Provincial i.e. 23.4.2004 and 27.4.2004 which were challenged by the petitioner in this Court and when writ petitions were decided, a composite notice was issued on 20.11.2010 both for Central and State. The composite notice was replied and thereafter it was withdrawn on 24.2.2011. The contents of the letter dated 24.2.2011 clearly indicate that what was considered in the order was the order dated 27.4.2004 regarding provincial but notice as a whole was withdrawn. There being no consideration of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division Bench of this Court held that a `rectifiable mistake' must exist and the same must be apparent from the record. It must be a patent mistake, which is obvious and whose discovery is not dependant on elaborate arguments. To the same effect is the judgement of this Court in the case of Commissioner of Central Excise, Calcutta vs. A.S.C.U. Limited [2003] 151 E.L.T. 481, wherein it has been held that a `rectifiable mistake' is a mistake which is obvious and not something which has to be established by a long drawn process of reasoning or where two opinions are possible. Decision on debatable point of law cannot be treated as "mistake apparent from the record." Other judgements of this Court relied by learned Counsel for the petitioner are reported in 2005 NTN (Vol. 26)-230 Commissioner of Trade Tax, U.P. Lucknow Vs. M/s Dhampur Sugar Mills Ltd. Dhampur , 2005 U.P.T.C-180 Commissioner of Sales Tax Vs. M/s. Abdul Gani Banney Miyan, Chandpur, 1988 U.P.T.C.-428 M/s. Matwala Ram Kishan Chand Vs. Commissioner of Sales Tax, U.P., 1997 (Vol.26) STR 453 M/s. Shree Bhagwati Flour Mills, Mainpuri Vs. Commissioner of Sales Tax and [1971] 082 ITR 0050-Balram (T.S.), ITO Vs. Volkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned including the shortcomings/defects in the forms. Sri Kesharwani also pointed out that in the earlier writ petitions which were filed by the petitioner challenging the orders dated 23.4.2004 and 27.4.2004 being writ petition Nos. 635 (Tax) of 2004 and 636 (Tax) of 2004, detail counter affidavit were filed in which correspondences received from the different tax authorities out side the State were brought on record on the basis of which the petitioner was communicated that forms -C which were claimed by the petitioner were not available for the benefit. Sri Keshwarwani also referred to various correspondences received from outside the State which were filed along with earlier counter affidavits. The petitioner was thus, substantially made aware of all correspondences and allegations on the basis of which re-assessment proceedings were initiated. Learned Counsel for the petitioner, submitted that S.I.B. Report has not been supplied to the petitioner. Replying which Sri Kesharwani submits that SIB report received from the Tax Department was nothing but compilation of correspondences, actual informations and verifications received from outside the State to which the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have participated in the proceedings before the said DC SIB. Further, according to the petitioner, the DC SIB submitted a report as a result of the said inquiry, whereafter notice for provisional assessment has been issued to the petitioner. The petitioner further submits that despite request of the petitioner copy of the report submitted by the DC SIB has not been supplied to the petitioner. The prayer in this writ petition is to restrain the provisional assessment proceedings till the supply of the said report of the DC SIB." The Division Bench in the said case noticed that assessing officer declined to supply copy of the report on the ground of confidentiality particularly when inference drawn from the said report has already been noticed in the show cause notice, and held that the decision of the Assessing Authority cannot be sustained Following was laid down by the Division Bench in paragraphs 6 and 7: " 6. The Assessing Authority has declined to supply copy of the report by his letter dated 15.12.2007 on the ground that the same is confidential and, therefore, need not be furnished to the petitioner particularly when inference drawn from the said report has already bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the record and the petitioner was given opportunity to look into the record . The apex Court in 1976 (1) SCC 124 City Corner Vs. Personal Assistant to Collector and Addl. District Magistrate , Nellore, held that it is not always necessary that documents asked for to be furnished, provided substance of the document is furnished and summary is not misleading. Following was laid down in paragraph 5 of the judgment: "But the main ground of attack against the order of cancellation is that in making it the district Magistrate had failed to observe the principles of natural justice. The order that the District Magistrate passed is a quasi- judicial order and therefore the appellant is right in contending that the principles of natural justice should have been followed before that order was passed. It is now well established by decisions of this Court that such is the requirement of law even where the statute in question itself does not so provide. It is also well established that the principles of natural justice do not necessarily conform to a fixed formula, nor is it a procrustean bed into which all proceedings must be fitted. The principles of natural justice will always depend upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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