9911796707
TMI Blog2016 (9) TMI 1222X X X X Extracts X X X X X X X X Extracts X X X X ..... did not exist at all at the time of order of re-assessment was passed on 28.6.2010 would not form basis for rectification of the re-assessment order. When it is undisputed position that the basis of the exercise of power for rectification is the clarification order dated 21.2.2012 issued by the Commissioner which in any case has come into existence after the order of re-assessment, the power of rectification was unavailable. Further, it is not the case of respondent-revenue that any other clarification like 21.2.2012 was already in existence prior to 28.6.2010 i.e. date on which the order of re-assessment was passed. No material which has come into existence after the order/re-assessment is passed can be made as the basis for exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re filed and the re-assessment was also made vide order dated 28.6.2010. On 21.2.2012, the Commissioner of Commercial Taxes issued clarification in purported exercise of his power whereby, he observed that, for the fabrication and erection of gates and windows etc., duty at the rate of 14% under Entry Sl.No.23 of Sixth Schedule shall be payable. Based on the aforesaid clarification, on 18.2.2013, the notice was issued by the Assessing Authority in purported exercise of power under Section 69(2) of the Act for rectification of the re- assessment order. On 22.2.2013, the petitioner filed the objections and on 15.3.2014, the assessing authority did not accept the objection and maintained the order for levying of tax at the rate of 12.5% with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or otherwise increasing the liability of the person concerned shall not be made unless the prescribed authority, appellate authority or revising authority, as the case may be, has given notice to the person concerned of its intention to do so and has allowed the person concerned the opportunity of showing cause in writing against such amendment. [(2-A) xxxxx] (3).Where an order has been considered and decided in any proceedings by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub- section in relation to any matter other than the matter which has been so co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 28.06.2010 and if considered, the same in our view can be said to be on the extraneous ground beyond the scope of power of rectification. The other issues of subsequent clarification dated 26.3.2015 providing for 5.5.% duty for the fabrication of the material of M.S (Mild Steel) in our view also can also be said as extraneous so far as exercise of power under Section 69 of the Act itself. It is true that in view of the aforesaid subsequent clarification dated 26.3.2015, the doubt may arise about the chargeability whether as per Entry No.4 of the Sixth Schedule or Entry No.23 of Sixth Schedule but, we do not propose to make any observation since as per the observations made by us hereinabove, the exercise of power for rectification u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point; it also ceases to be a point requiring elaborate arguments or detailed investigation/enquiry. To encapsulate, the following will be mistakes apparent from the record relating to a question of law: (a) An order made, ignoring or overlooking: (i) a binding decision of the Supreme Court or the concerned High Court rendered prior to the date of such order; and/or (ii) a relevant provision of existing law; (b) An order, found to be erroneous: (i) by applying a subsequent enactment given retrospective effect; and/or (ii) by applying a subsequent decision of the Supreme Court or concerned H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word apparent is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. 8. In our view, in any case, the material which did not exist at all at the time of order of re-assessment was passed on 28.6.2010 would not form basis for rectification of the re-assessment order. When it is undisputed positio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
