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TMI Blog2022 (11) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... at a finding regarding discrepancies in the reassessment orders insofar as the suppressed turn-over for the month of September, 2006 and July, 2006. Firstly it must be noted that the same was never raised in the rectification application dated 04.08.2012 and obviously while deciding on point for consideration framed by it, it could not have gone beyond the grounds raised in the rectification application which point was considered by the First Appellate Authority. The Second Appellate Authority in exercise of power under Section 63 was only looking into the correctness or otherwise of the order passed under Section 62 and consideration being circumscribed within the above framework it could not have embarked upon its own finding contrary to grounds raised in the rectification application. Section 69 (2A) provided for deemed rectification if the application was not rejected by the assessing authority within 60 days. The omission of Section 69 (2A) does not take away the power of rectification available under Section 69 (1) and such power can be invoked by the authority once it is convinced that there is a mistake apparent. Accordingly, to hold that the assessee could not file an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt under Section 39 (1) of the KVAT Act. 8. On the basis of the discrepancies noticed, notice was issued and reply also came to be made by the assessee contending that the report of the Intelligence Authority was incorrect as the turn over quantified was not of sales. It was contended that the details of the quotations issued to the customers were recorded in certain books and such details were considered as sales turn over by the Authority incorrectly. 9. While rejecting the objections, contents of the notice issued were affirmed. 10. Notice of Demand under Rule 180 (1) came to be served on 03.10.2011 along with the re-assessment order dated 22.09.2011. 11. The assessee filed an application for rectification of the re-assessment order under Section 69 of the KVAT Act, 2003 which however came to be rejected by endorsement dated 09.08.2012 rejecting the application filed. Though the said endorsement came to be challenged before this Court by way of a writ petition filed the same was disposed off directing the assessee to exhaust the alternative remedy and to prefer an appeal under Section 62 of the KVAT Act, 2003. Subsequently, an appeal came to be filed under Section 62 (6) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Authority is only an order of remand and accordingly no grounds are made out for interference in the present proceedings. 19. The learned Government Advocate on the other hand has contended that the scope of rectification proceedings are narrow and unless there is a mistake apparent on the record, there could be no interference with the re-assessment order. It is also contended that reassessment order having become final and not having been challenged by appropriate appeal proceedings the said order cannot be reopened in the guise of rectification. 20. It is also submitted that as against the order issuing an endorsement and declining rectification, the First Appellate Authority under Section 62 (6) of the KVAT Act having recorded a detailed finding that there was no mistake apparent on record and that the endorsement was sustainable, question of interference by the Second Appellate Authority exercising power under Section 63 is impermissible. 21. It is also submitted that the Second Appellate Authority cannot go beyond the scope of the proceedings as made out before the First Appellate Authority. 22. Insofar as the mistakes that are stated to have occurred as noted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 was sustainable. 27. In the second appeal under Section 63 the tribunal ought to have confined itself to the correctness or otherwise of the order of rejection of rectification application. The scope of rectification also is to be limited to the extent of rectifying the error. If that were to be so, the re-opening of the re-assessment order would be impermissible. 28. This Court has framed a question of law to the effect Whether on such application for rectification of mistake filed by the assessee after 01.04.2012, the tribunal entertaining second appeal by the assessee could remand the entire case back to the Assessing Authority even though the assessee never filed a Regular Appeal under Section 62 of the Act against the impugned assessment order but had only filed an application for rectification of the mistake under Section 69 of the Act, after 01.04.2012? 29. The Second Appellate Authority while recording findings has answered in the negative as regards Point No.1. Point No.1 reads as follows: Whether the orders of the FAA confirming the endorsements issued by the AA are sustainable as per law? 30. While determining in the negative on the said point for consideration the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the scope of the relief sought for in the rectification application. The Second Appellate Authority has arrived at a finding regarding discrepancies in the reassessment orders insofar as the suppressed turn-over for the month of September, 2006 and July, 2006. Firstly it must be noted that the same was never raised in the rectification application dated 04.08.2012 and obviously while deciding on point for consideration framed by it, it could not have gone beyond the grounds raised in the rectification application which point was considered by the First Appellate Authority. The Second Appellate Authority in exercise of power under Section 63 was only looking into the correctness or otherwise of the order passed under Section 62 and consideration being circumscribed within the above framework it could not have embarked upon its own finding contrary to grounds raised in the rectification application. Accordingly, it can be stated that the Second Appellate Authority has wrongly decided the point no. 1 framed by it by re-opening the re-assessment order and such exercise of power would be impermissible. The above finding would also in effect answer question of law at point No. 2(ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has failed to decide or decided erroneously any question of law. The question of law framed at Point No. 2(ii) in effect falls within the scope of enquiry under Section 65 of the Act. 41. Insofar as the question of law at point No. 2(i) is concerned which relates to validity of rectification application by the assessee after deletion of 69 (2A), it must be noted that Section 69 (2A) provided for deemed rectification if the application was not rejected by the assessing authority within 60 days. The omission of Section 69 (2A) does not take away the power of rectification available under Section 69 (1) and such power can be invoked by the authority once it is convinced that there is a mistake apparent. Accordingly, to hold that the assessee could not file an application seeking rectification invoking power under Section 69 after deletion of Section 69 (2A) may not arise. As pointed out above, Section 69 (2A) only relates to deeming effect of not passing orders on the rectification application within 60 days and does not have anything to do with exercise of power under Section 69 (1). Accordingly, point no. 2(i) may not in fact arise, though it is framed as a question of law. As right ..... X X X X Extracts X X X X X X X X Extracts X X X X
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