LexM/S. DEVA METAL POWDERS PVT. LTD. versus COMMISSIONER, TRADE TAX, U.P.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
( MIS. DEV A METAL POWDERS PVT.LTD. A v. COMMISSIONER, TRADE TAX, U.P. DECEMBER 4, 2007 -· B [DR. ARIJIT P ASAY AT AND P. SATHASIV AM, JJ.] UP. Sales Tax Act, 1948: s.22-Rectification of mistake-When permissible-Held: Permissible when mistake is apparent and its discovery is not dependent on argument or elaboration-Where error c is far from self-evident, it ceases to be apparent-Decision on debatable point of law or fact or failure to apply the law to set of facts which remains to be investigated cannot be corrected by way of rectification. t Words and phrases: 'mistake ', 'apparent '-Meaning of D Assessce was dealing with Aluminium powder. In the original assessment order, Aluminium powder was treated as metal and accordingly [email protected]%. Assessing Officer initiated proceedings under s.22 of the U.P. Sales Tax Act, 1948 on the ground that the Supreme Court had in Hindustan Aluminium Corporation*, E considered the entry' All kinds of minerals, ores, metals and alloys including sheets and circles' and held that under this entry only the primary metal is covered. Assessing officer accordingly rectified the assessment orders under s.22 and levied tax treating the Aluminium powder as an unclassified item. F The first appellate authority held that s.22 had no application and the assessments were set aside. Tribunal dismissed the appeal filed by revenue. High Court held that action under s.22 was clearly sustainable. G In appeal to this Court, the assessee contended that this is a case where s.22 had no application; that s.22 is only applicable to a case where the error is apparent on the face of the record and where a matter is disputable there can be no order under s.22 of the Act. 893 H 894 SUPREME COURT REPORTS [2007] 12 S.C.R. A Allowing the appeal, the Court HELD: 1.1. A bare look at s.22 of the U.P. Sales Tax Act, 1948 makes it clear that a mistake apparent from the record is rectifiable. In order to attract the application of s.22, the mistake must exist B 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. "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 C means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under s.22 is one which is patent, which is obvious and its discovery is not dependent on argument or elaboration. D (Para 10) (898-G; 899-AJ 1.2. Rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intended to do in the present case was precisely the substitution of the order which is not permissible under the provisions E of s.22 and, therefore, the High Court was not justified in holding that there was mistake apparent on the face of the record. S.22 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases F to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under s.22 is not confined to clerical or arithmetical mistake. On the other hand, it does not cover any mistake which may be discovered by a complicated process ofinvestigation, argument or proof. A decision on a debatable point of law or fact or failure to G apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. The High Court's order is clearly unsustainable. This Court has not expressed any opinion on the issue as to whether Aluminium powder can be regarded "metal in primary form" for the purpose of payment of tax. There is no need to adjudicate that aspect in view of the fact thatthe rectification done H . ./ DEVAMETALPOWDERSPVT.LTD.v. COMMISSIONER, 895 TRADETAX,U.P.[PASAYAT,J.] in purported exercise of s.22 is clearly impermissible. A [Paras 10, 11and13) [899-B, C, D, G; 900-A, C, DJ Mis. Karam Chand Thapar and Bros. (Coal Sales) Ltd. v. State ofUttar Pradesh andAnr., [1976) 4 SCC 257, held inapplicable. Hindustan Aluminium Corporation Ltd. v. State of Uttar
Excerpt shown. Read the full judgment & AI analysis in Lexace.