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TMI Blog2023 (12) TMI 298X X X X Extracts X X X X X X X X Extracts X X X X ..... bed by an exception in subsection (1)(ii) of Section 54, that if rectification leads to enhancing the tax or reducing the amount of refund then a prior opportunity of being heard shall be afforded to the Revenue by issuing notice - However, the provision is silent as regards affording of any opportunity to the assessee who preferred the application for rectification. Since the Revenue has not denied that petitioner-assessee was not afforded prior opportunity of being heard before passing the impugned order dated 27.03.2017 (Annexure P/4) and dated 17.04.2017 (Annexure P/6), this Court deems it appropriate to interfere in the impugned order for having been passed without affording reasonable opportunity of being heard to petitioner-assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me within one calendar year from the date of any order passed by him; or (ii) on an application made by a dealer within one calendar year from the date of receipt of such application, rectify, in such manner as may be prescribed, such order for correcting any clerical or arithmetical mistake or any error arising therein from any omission : Provided that - (i) the Commissioner shall not entertain any application by the dealer unless it is made within one year from the date of the order sought to be rectified : (ii) no such rectification shall be made if it has the effect of enhancing the tax or reducing the amount of refund unless the Commissioner has given notice in the prescribed form to the dealer of his intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of enhancing the amount of the tax or reducing the amount of the refund, the Commissioner shall recover the amount due from the dealer in the manner provided in Section 24. 5 . From bare perusal of aforesaid statutory provision, it is obvious that Commissioner is vested with the power to rectify clerical/ arithmatical mistakes or error arising from any omission in an order passed earlier. The said power is circumscribed by an exception in subsection (1)(ii) of Section 54, that if rectification leads to enhancing the tax or reducing the amount of refund then a prior opportunity of being heard shall be afforded to the Revenue by issuing notice. 5.1 However, the provision is silent as regards affording of any opportunity to the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of being heard to the assessee, held that provisions of natural justice should be read into the statutory provision making it obligatory on the competent authority to afford prior opportunity of being heard to the assessee before deciding the rectification application. The Coordinate Bench of this Court thus in C.L.C. Textile Park Pvt. Ltd. (supra) held that before deciding an application for rectification the competent authority is obliged to afford prior opportunity of being heard to the assessee irrespective of the fate of rectification application. The relevant extract of the decision of the Coordinate Bench of this Bench in C.L.C. Textile Park Pvt. Ltd. (supra) is reproduced hereinbelow: 9. When a statutory provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en held by the Supreme Court that even if a statutory rule does not provide for an opportunity of hearing if the order impugned has the effect of affecting the rights of person adversely then the requirement of the principles of natural justice has to be read into the Rules. 13. In the instant case also, if we apply the principles of reading into the statute i.e. section 54(1), the requirement of the principles of natural justice, we find that the legislature was conscious of the fact that a dealer or the department or the revenue may after orders of assessment are passed, find some error in the orders passed, therefore, the rule makers incorporated a provision i.e. 54(1) providing for an application to be filed or suo motu action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly, we allow both the petitions; quash the orders; and, remand the matter back to the Assistant Commissioner, Commercial Tax, Chhindwara with a direction to issue notice to the petitioners, hear them on the application for rectification and, thereafter pass an order in accordance with law. 7 . The ratio laid down in C.L.C. Textile Park Pvt. Ltd. (supra) continues to hold the field till date and has not been disturbed by any subsequent judicial pronouncement. 8 . Consequent upon the aforesaid, since the Revenue has not denied that petitioner-assessee was not afforded prior opportunity of being heard before passing the impugned order dated 27.03.2017 (Annexure P/4) and dated 17.04.2017 (Annexure P/6), this Court deems it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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