The main legal point established in the judgment is that the assessing authority must have a prior assessment order to rectify a mistake under Section 31 of the U.P. VAT Act, 2008, and in the absence of such an order, the authority does not have the jurisdiction to issue any notice or pass any rectification order.

JUDGMENT :

Saumitra Dayal Singh, J.

1. Heard Sri B.K. Pandey, learned Standing Counsel for the revenue and Sri Anshul Nigam, learned counsel for the assessee.

2. The present revisions have been filed by the revenue against the order of the Commercial Tax Tribunal dated 02.11.2018 passed in Second Appeal Nos. 289 of 2018 for A.Y. 2008-09 and 290 of 2018 for A.Y. 2009-10. By those orders, the Tribunal has dismissed the second appeals filed by the revenue and confirmed the order passed by the Additional Commissioner, the first appeal authority. The first appeal authority had set aside the order passed under Section 31 read with Section 32 of the U.P. VAT Act, 2008 (hereinafter referred to as the Act) and had thus set aside the order of rectification passed by the assessing authority subjecting the assessee to tax @ 12.5% on the goods Alpenliebe 1000, 1500, 200, 300, Stic, Freshtils, Chloromint, Chleodiet, Caramel Chocotella, Coffee Alienliebe Coffi Creamfills, Creamfills Xtra Mango, Fruitells, Lolly Pop, Bil Babool, Center Fresh, etc.

3. The present revisions were admitted on the following question of law:

"Whether on the facts and circumstances of the case the Commercial Tax Tribunal was legally justified in holding that while passing the original assessment order, the assessing authority has applied the rate of tax after application of mind and the same cannot be corrected under Section 31 of the Act under the heading mistake apparent on the face of record?"

4. Admittedly, the assessee filed its returns for assessment years in question disclosing turnover of sales of the commodities namely Alpenliebe 1000, 1500, 200, 300, Stic, Freshtils, Chloromint, Chleodiet, Caramel Chocotella, Coffee Alienliebe Coffi Creamfills, Creamfills Xtra Mango, Fruitells, Lolly Pop, Bil Babool, Center Fresh and others, declaring the same to taxable @ 4%. In support of its claim, the assessee has also contended that it had raised invoices to charge tax on those commodities @ 4% only treating the goods to be covered under Schedule II of the Act.

5. The revenue admits that no order was passed by the assessing authority under Section 28 of the Act but it is claimed, a self assessment order had been passed on 09.11.2009. That order is actually a rubber stamp affixed on the order sheet. It reads as below:

^^mŸkj izns'k ewY; lacf/kr dj vf/kfu;e] 2008 dh /kkjk&27 ds varxZr o"kZ ds fy, dj fu/kkZj.k vkns'k ds :i esa ?kksf"kr Lohd`r dj ns;rk lfgr LohdkjA^^

6. Only the signature of the assessing officer has been affixed on the rubber stamp noting extracted above.

7. According to the assessing officer, he subsequently discovered that the assessee had been wrongly subjected to tax @ 4% whereas the goods in question were non-classified goods and therefore liable to tax @ 12.5% under Schedule V of the Act. First, he passed an ex parte order under Section 31 of the Act and subjected the assessee to differential rate of tax @ 8.5%. Then, upon an application filed under Section 32 of the Act, that ex parte order was recalled. However after hearing the assessee, assessment @ 12.5% was reiterated by the subsequent order dated 10.08.2016. It is that order which was made the subject matter in first appeal, that came to be allowed on the reasoning that there was no mala fide intent on part of the assessee. The Tribunal has upheld the order on the reasoning that the order dated 10.08.2016 amounted to a change of opinion in the garb of rectification of mistake. It was impermissible.

8. Assailing the aforesaid order, learned Standing Counsel has submitted, in the context of Section 31 of the Act, the mistake must be apparent from the record itself. It was neither relevant whether the mistake had been committed bona fide nor it was relevant whether any material had subsequently come on record to establish such mistake. On the second aspect, it has been submitted infact, any other material that may come on record after passing of the assessment order may never be relevant to examine w