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TMI Blog2015 (8) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... tion certified by the Uttar Pradesh Khadi and Gram Udyog Board. Undisputedly, certificate issued by The U. P. Khadi and Gram Udyog Board was valid up to September 7, 2008. Vide entry No. 3 of notification No. 7037 dated January 31, 1985 sales of certain specified goods manufactured by units certified by the Uttar Pradesh Khadi and Gram Udyog Board which includes "black-smithy" were exempted under section 4(c) of the U. P. Sales Tax Act, 1948 from payment of sales tax. The said notification was amended by Notification No. 2792 dated September 30, 2004 by which the following commodities as are relevant for the purposes of the case were substituted:- "Agricultural instruments, doors, windows, manufacturing of hardware and furniture related to the work of blacksmithy and carpentry and servicing involving use of power up to 10 horse power." 6. Aforenoted facts are wholly undisputed. On these facts exemption to the applicant was granted by the assessing officer for the assessment year 2003-04 in respect of turnover of steel fabricated items, namely, doors and windows, etc., vide assessment order dated December 22, 2005. For the assessment year 2004-05 also the assessing officer n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant was undisputedly qualified for exemption up to a turnover of Rs. 50 lacs in view of the certificate of Uttar Pradesh Khadi Gram Udyog Board and the Notification No. 7037 dated January 31, 1985 and Notification No. 2792 dated September 30, 2004; was a mistake apparent on record and thus was rectifiable under section 22 of the Act particularly when in the earlier assessment years the same assessing officer has granted the above exemption. He, therefore, submits that the first appellate authority as well as the Tribunal have committed manifest error of law and fact to reject the appeals of the applicants on the grounds that the claim for exemption does not fall within the scope of section 22 of the Act. 9. Sri B. K. Pandey, learned standing counsel submits that the Tribunal has correctly held that the exemption has been rightly denied to the applicant by rejecting his application under section 22 of the Act. He submits that the impugned orders do not suffer from any infirmity. 10. I have carefully considered the submission of learned counsel for the parties. 11. It is undisputed that the applicant's unit was certified by the Uttar Pradesh Khadi and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll cause a notice to be served on the dealer, stating the reasons, for non-acceptance of the turnover of sales or purchases or both, as disclosed in the returns, if any, submitted by him and shall give him a reasonable opportunity of furnishing his reply thereto." 13. Section 7 of the U. P. Trade Tax Act, 1948 provides for determination of turnover and assessment of tax. Section 3 is the charging section which provides that subject to the provisions of this Act, every dealer shall for each assessment year pay a tax at the rate provided by or under section 3A or section 3D his turnover of sales or purchases for both, as the case may be, which shall be determined in such manner as may be prescribed. 14. Section 4(c) of the Act provides that no tax under this Act shall be payable on the sale or purchase of such goods by such other person or class of persons as the State Government may, by notification in the Gazette, exempt subject to conditions as may be specified in the notification. 15. Notification No. 7037 dated January 31, 1985 as amended by Notification No. 2792 dated September 30, 2004 was issued by the State Government under section 4(c) of the Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the first instance." 18. Under section 22 of the Act a mistake apparent on record in any order passed under the Act by any officer of authority or the Tribunal or the High Court is rectifiable either on its motion or on the application of the dealer or any other interested person. "Mistake apparent on record" is essential for acquiring jurisdiction to effect rectification which must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. In order to attract section 22 of the Act, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 19. "Mistake" means to take or understand wrongly or inaccurately, to make an error in interpreting. It is an error, a fault, a misunderstanding or a misconception. 20. The word "apparent" means visible ; capable of being seen, obvious, plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." 21. Thus such mistakes can be rectified under section 22 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately ; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen, obvious ; plain. It means 'open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming'. A mistake which can be rectified under section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. In our view rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of section 22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the record. In order to bring an application under section 22, the mistake must be 'apparent from the record. Section 22 does not enable an order to be reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te discussion of evidence or argument to establish it, can be said to be an error apparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need a long drawn out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of possible views, the case cannot be said to be covered by an error apparent on the face of the record. ... 39. As stated earlier, the decision was rendered in appeal by the Income-tax Appellate Tribunal, Rajkot. A miscellaneous application came to be filed by the assessee under sub-section (2) of section 254 of the Act stating therein that a decision of the 'jurisdictional court', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ths prior to that decision, but it was not brought to the attention of the Tribunal. In our opinion, in the circumstances, the Tribunal has not committed any error of law or of jurisdiction in exercising power under sub-section (2) of section 254 of the Act and in rectifying the 'mistake apparent from the record'. Since no error was committed by the Tribunal in rectifying the mistake, the High Court was not wrong in confirming the said order. Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for." 24. In the case of Amar Deep Oil Extraction, Mainpuri v. Sales Tax Officer (A), Mainpuri[2004] UPTC 992, a Division Bench of this court held as under:- "12. From the above facts it appears that prior to Notification Nos. 2994 and 2995, dated April 3, 1975 oil-cake was exempted but vide aforesaid Notification No. 2995, dated April 3, 1975 it was made liable to tax at two per cent. Although oil-cake includes deoiled cake, but to clarify this position the aforesaid Notification No. 8447 dated October 1, 1975 was issued which specifically provided 'oil cake' (including de-oiled cake) to be liable to tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce adduced by him or gathered by the assessing authority in the course of the assessment proceedings would constitute the record of assessment. In the present case the assessee had produced his account books before the assessing authority. It was on a comparison of the return and the account books that the version disclosed by the account books was rejected. The account books would, in our opinion, constitute a part of the record of assessment. The record of assessment would also be a part of the record of appeal and revision. A mistake apparent on the face of such a record is capable of being rectified under section 22. 8. Section 22 does not specify the nature or character of the mistake beyond saying that it would be apparent on the face of the record. Section 22 does not predicate the nature and extent of the scrutiny that will make the mistake apparent, provided the scrutiny is confined to the record as it is. In the present case the assessee pleaded that a perusal of the account books would show that there was a clear mistake in the return filed by him. If that be so, it would, in our opinion, be a case of mistake apparent on the face of the record, no matter what may be th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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