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TMI Blog2011 (3) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... ity manufactured and sold by him, namely, P.U. resin (polyurethane resin) was taxable only at the rate of 10 per cent in residuary entry and not at the rate of 16 per cent under entry No. 91 of the notification dated March 27, 1995, which prescribes rate of tax at the rate of 16 per cent on all types of synthetic adhesives, is a question which falls outside the ambit and scope of section 37 of the said Act and, therefore, the learned Deputy Commissioner (Appeals) was not justified in allowing the appeal of the assessee as well as application under section 37 of the Act. Hence, this revision petition by the assessee before this court. The learned counsel for the petitioner-assessee, Mr. Devendra Kumar, urged that, in the first instance, while passing the original assessment order itself on March 17, 1999, the learned assessing authority had fallen into error in enhancing the rate of tax from 10 per cent to 16 per cent by levying the additional or difference of tax of six per cent on the sale of Rs. 15,80,839 declared by the assessee as taxable at the rate of 10 per cent as sales not supported by declaration form in the return filed by it and imposing additional six per cent tax the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Guj), the Division Bench of Gujarat High Court held as under (headnote): "Where the Sales Tax Officer brought the respondent's turnover of sweets and toffees to tax under entry 50 of Part A of the Second Schedule to the Gujarat Sales Tax Act, 1969, but at the rate of eight per cent instead of at seven per cent as prescribed in the said entry: Held, that it was a case of a mistake apparent on the face of the record and the Tribunal was right in directing rectification holding that the goods were not covered by the residuary entry 13 of the Third Schedule to the Gujarat Sales Tax Act." (iv) In T.S. Rajam v. Controller of Estate Duty, Madras [1968] 69 ITR 342 (Mad), the Division Bench of the Madras High Court while dealing with a matter of estate duty and explaining as to what is rectification of mistake apparent from the record, held as under (headnote): "For a rectification of an error which is said to be apparent from the record, the mere complexity of the problem or that genuine argument is necessary to discover the same may not by themselves be sufficient to oust the jurisdiction of the Tribunal to rectify such a mistake. If it could be discerned with some precision after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Tax Board has fallen into error in setting aside that order of the Deputy Commissioner (Appeals). He also submitted that the principle of estoppel and res judicata do not apply to the taxing statutes and each assessment year being independent, the previous history of taxability of this commodity at 16 per cent and assessee not challenging the same in higher forums, could not stand in the way of assessee from raising this question through rectification application in the present assessment year 1996-97. Per contra, Mr. R.B. Mathur, learned standing counsel for the Commercial Taxes Department, vehemently opposed this submission of learned counsel for the assessee and submitted that if the assessee was aggrieved of the assessment order, the only appropriate remedy for him was to file an appeal against the assessment order and seek his remedy. Since the question of applying the rate of tax on a particular commodity cannot be said to be a mistake apparent on the face of the record, the debatable point as to what rate of tax should be applied on P.U. resin, whether 10 per cent or 16 per cent and whether it is synthetic adhesive or not, cannot be determined by resorting to section 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f enacting such a provision in a taxing statute is also to achieve the object of correct assessment order, lest such mistakes would go unnoticed and buried for all times to come. Of course, these provisions have to be invoked subject to limitation prescribed in the provision but the words "mistake apparent from the record" cannot exclude from its ambit and scope, the mistake of applying a wrong rate of tax as well. It is true that debatable question requiring adducing of evidence, interpretation of provisions of law and application of case laws and precedents may fall outside the scope of section 37 of the Act but there is no reasonable basis for denying this remedy to the assessee where he comes with a clear case that wrong rate of tax has been applied in his assessment order and the assessing authority as well as appellate authorities cannot shirk their responsibility of deciding this question as to what is the correct rate of tax which ought to be applied in the facts of the assessee in a case before them. The contention of the learned counsel for the assessee before this court in the present case is that P.U. resin can, by no stretch of imagination, be held to be synthetic ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e absence of such question having been decided promptly after giving an opportunity of hearing to the assessee by leading the evidence as to the nature of the commodity and the entry which ought to have been applied for applying the correct rate of tax to the commodity in question, namely , P.U. resin, this question has virtually remained undecided, at least not decided properly even at the hands of the Deputy Commissioner (Appeals), who touched the merit of the issue and decided the question in favour of the assessee. Therefore, while holding that this question falls within the four corners of section 37 of the Act dealing with the rectification of mistake apparent on the face of the record, this court is inclined to set aside all the three orders passed by the three authorities below and remand the case back to the assessing authority itself. Accordingly, this revision petition is allowed and the three orders, namely, order dated March 13, 2000 passed by the assessing authority, order dated August 22, 2000 passed by the Deputy Commissioner (Appeals) and order dated August 16, 2004 passed by the learned Tax Board are set aside and the matter is remanded back to the learned assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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