2011 Supreme(SC) 327

2011 (2) Supreme 633
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and Anil R. Dave, JJ.
Assistant Commercial Taxes Officer — Appellant
versus
M/s Makkad Plastic Agencies — Respondent
Civil Appeal No. 2692 of 2011
[Arising out of SLP (C) No. 33853 of 2010]
Decided on : 29-3-2011

IMPORTANT POINT
Review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible.

Headnote:Rajasthan Sales Tax Act, 1994 -Section 29(7), 37 - Assessment of assessee-respondent by Assessing Officer holding that tax on “thermo ware” and “vacuum ware”, articles sold by assessee-respondent would be levied Sales Tax at 10 per cent instead of 8 per cent, treating them as separate articles from plastic goods/products- Liability of difference of tax at 2 per cent along with surcharge, interest and penalty was also levied-Appeal thereagainst- Allowed by Appellate Authority-Appeal-Allowed by Taxation Board-On rectification amendment application , Taxation Board modified its earlier order holding that as the mala fide intention of assessee-respondent for tax evasion had not been proved order of levying penalty was not justiciable- Taxation Board set aside the order passed by the Deputy Commissioner [Appeals], on the issue of tax evasion only, while maintaining finding on issue of penalty-Revision Petition-Dismissed by High Court-Appeal-Held Section 37 of the Act of 1994 provides for a power to rectify any mistake apparent on the record- Such power is vested on the authority to rectify an obvious mistake which is apparent on the face of the records and for which a re- appreciation of the entire records is neither possible nor called for- Taxation Board while passing subsequent order exceeded its jurisdiction by re-appreciating the evidence on record and holding that there was no mala fide intention on part of assessee-respondent for tax evasion- Such re-appreciation of evidence to come to a contrary finding was not available under Section 37 of Act of 1994 while exercising power of rectification of error apparent on the face of the records-.Hence orders passed by Taxation Board as also judgment passed by the High Court upholding said order of the Taxation Board set aside and original order passed by Assessing Officer restored-Appeal allowed. (Paras 17 to 20)

       Facts of the Case :

        On Assessment of assessee-respondent Assessing Officer held that tax on “thermo ware” and “vacuum ware”, articles sold by assessee-respondent would be levied Sales Tax at 10 per cent instead of 8 per cent, treating them as separate articles from plastic goods/products. Liability of difference of tax at 2 per cent along with surcharge, interest and penalty was also levied. Appeal thereagainst was Allowed by Appellate Authority. Further Appeal was Allowed by Taxation Board. On rectification amendment application , Taxation Board modified its earlier order holding that as the mala fide intention of assessee-respondent for tax evasion had not been proved order of levying penalty was not justiciable. Taxation Board set aside the order passed by the Deputy Commissioner [Appeals], on the issue of tax evasion only, while maintaining finding on issue of penalty. Revision Petition thereagainst was Dismissed by High Court.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        The Court held that review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/correction is not permissible. Section 37 of the Act of 1994 provides for a power to rectify any mistake apparent on the record. Such power is vested on the authority to rectify an obvious mistake which is apparent on the face of the records and for which a re- appreciation of the entire records is neither possible nor called for. Taxation Board while passing subsequent order exceeded its jurisdiction by re-appreciating the evidence on record and holding that there was no mala fide intention on part of assessee-respondent for tax evasion. Such re-appreciation of evidence to come to a contrary finding was not available under Section 37 of Act of 1994 while exercising power of rectification of error apparent on the face of the records..Hence orders passed by Taxation Board as also judgment passed by the High Court upholding said order of the Taxation Board was set aside and original order passed by Assessing Officer was restored. Appeal was allowed.

       Result : Appeal allowed.