9911796707
TMI Blog2022 (3) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... he rectification has the effect of enhancing an assessment or penalty. In the instant case, there is no scope for any enhancement of assessment or penalty, as the rectification application was attempted by the assessee itself. However, had the assessee sought for an opportunity of hearing, the situation could have been viewed differently. Since the assessee itself did not seek an opportunity of hearing, it cannot be said that the impugned order was issued in violation of the principles of natural justice. This Court had interfered with the impugned orders on facts that were peculiar therein or for not granting an opportunity of hearing even after requesting for such a hearing. In the instant case, as already mentioned, an opportunity for hearing was never requested and further, the impugned order had considered the points raised by the petitioner in the rectification application. The question whether the findings in the order declining rectification is correct or not cannot be gone into in this jurisdiction under Article 226 of the Constitution. The observations in this judgment are not based on specific factual consideration of issues arising in the instant case. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had passed through the books of account and conceded before the assessing authority as turnover suppression, as per the provisions of section 67 of the Act: and (d) binding decisions of the jurisdictional High Court and of the Supreme Court were not considered, thereby rendering the order of assessment under section 67 as a non-est. 5. In this context it is pertinent to point out that in the rectification petition, the petitioner had not sought the relief of a personal hearing. 6. Thereafter by order dated 23-11-2021, the assessing officer rejected the petition for rectification after finding that there is no reason to invoke section 66 of the Act. It was held that debatable issues cannot be the cause of a rectification petition and also that the error can be established only by an argument and is therefore not a reason to invoke the power under section 66 of the Act. 7. I have heard Sri.A. Kumar, the learned counsel for the petitioner as well as Smt.M.M Jasmin, the learned Government Pleader for the respondents. 8. The learned counsel for the petitioner submitted that the assessing officer went on a totally wrong tangent in rejecting the application for rectifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Commission issuing any order or proceedings under this Act may, on application or otherwise, at any time within four years from the year in which the order is passed by it, rectify any error apparent on the face of the record: Provided that no such rectification, which has the effect of enhancing an assessment or any penalty, shall be made unless such authority has given notice to the person affected and has allowed him a reasonable opportunity of being heard. (2) Where such rectification has the effect of reducing an assessment or penalty, the assessing authority shall make any refund to the person entitled thereto. (3) Where any such rectification has the effect of enhancing an assessment or penalty, the assessing authority shall give the dealer or other person, a revised notice of assessment or penalty and thereupon the provisions of this Act and the rules made thereunder shall apply as if such notice has been given in the first instance. Explanation :-The liability to pay the tax or other amount shall arise only from the date specified in the revised notice. 11. Though the scope of the words error apparent on the face of the record has not been de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ. 10 .. .The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 15. Thus when an error is not self-evident, it ceases to be an error apparent. As observed by the Courts, an error that is apparent from the record should be one which is not dependent for its discovery on elaborate arguments on questions of fact or law. 16. An appreciation of the impugned order reveals that the same is not a cryptic order. The assessing officer has considered the various contentions raised by the assessee in the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the statutory provision and it is not discernible whether an opportunity of hearing was requested for by the assessee in that case. The circumstances are therefore distinguishable from the facts of the present case. Yet again in the decision in M/s.Oceanus Dwellings Pvt. Ltd. v. The State Tax Officer (W.P.(C) No.33901 of 2019) also, this Court interfered with the order under section 66 of the Act, after finding that a case was made out for interference under Article 226 of the Constitution since there was no proper consideration. 19. In all the above-referred decisions, this Court had interfered with the impugned orders on facts that were peculiar therein or for not granting an opportunity of hearing even after requesting for such a hearing. In the instant case, as already mentioned, an opportunity for hearing was never requested and further, the impugned order had considered the points raised by the petitioner in the rectification application. The question whether the findings in the order declining rectification is correct or not cannot be gone into in this jurisdiction under Article 226 of the Constitution. 20. I have considered the scope of the rectification petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
