ORDER

Heard the learned counsel for the petitioner and the learned Government counsel for the respondents.

2. A short point that arises for consideration is whether the office of the 1st respondent was justified in returning the appeal filed by the petitioner against the rectification order dated 29.04.2021?

3. The petitioner has challenged the impugned memo dated

06.08.2021, returning the appeal filed by the petitioner against the rectification order dated 29.04.2021 passed by the 2nd respondent under Section 84 of the Tamil Nadu Value Added Tax Act, 2006.

4. The facts of the case are that the petitioner had earlier suffered assessment orders on 19.03.2020 for the Assessment Years 2013-2014 & 2014-2015. Under this circumstances, the petitioner had filed an application for rectification of the mistakes under Section 84 of the Tamil Nadu Value Added Tax Act which came to be disposed by an order dated

29.04.2021.

5. The original assessment order passed on 19.03.2020 thus stood merged with the rectification order dated 29.04.2021. The petitioner therefore preferred an appeal before the Appellate Commissioner under Sections 51 and 53 of the TNVAT Act, 2006. By the impugned return memo dated 06.08.2021, the office of the 1st respondent has stated that the appeal is not maintainable as time barred.

6. Section 84 of the Tamil Nadu Value-Added Tax Act, 2006, allows rectification of mistake of an order passed by an Assessing Authority, the Appellate Authority or the Revisional Authority, including the Appellate Tribunal which passed the order under the aforesaid section, ''rectification of mistake'' can be allowed on “error apparent on the face of the record”.

7. Under Order 47 Rule 1 of the Civil Procedure Code, a review of a judgement is permissible and the Court can rectify an “error apparent on the face of the record” in the judgment/decree passed by it. Order 47 Rule 7 Civil Procedure Code, which has codified the procedure also makes it clear that an order of the court rejecting the application shall not be appealable. An order granting an application for review may be objected to at once by way of an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in suit.

8. The effect of an order under review of the judgement/decree results in vacation of the original judgement/decree which was earlier passed. (see also the decision of the Hon'ble Supreme Court in Sushil Kumar Sen vs State of Bihar, [(1975) 1 SCC 774].

9. In Kunhayammed v. State of Kerala, (2000) 6 SCC 359, the Hon'ble Supreme Court held observed as follows:-

“The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle or logic flowing from the above said decisions can usefully be utilised for resolving the issue at hand.”

10. A reading of Sub Section (5) to Section 84 of the TNVAT Act, 2006 makes it clear that the provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this section as they apply to the order in respect of which such order of rectification has been made which reads as under. Section 84(5) of the TNVAT Act, 2006 is reproduced below:-

''(5) The provisions of this Act relating to appeal and revision shall apply to an order or rectification made under this section as they apply to the order in respect of which such order of rectification has been made.''

11. Thus, if an application for review is dismissed, the party aggrieved cannot be left without remedy to file an appeal against the original judgement/decree review of which was pursued bona-fide but unsuccessfully.

12. Under those circumstances, an appellate remedy would be still available and