Decided on February 08,2010



J. Shyam Sundar Rao, Chairman - (1.)THE appellant preferred this AR over the endorsement dated 29 -12 -2009 issued by the O/o the Deputy Commissioner (CT), Abids Division, Hyderabad. The office took objection as to how the appeal is maintainable against the endorsement of the Deputy Commissioner, Abids Division, Hyderabad. In fact the matter was called up at the Bench at the instance of the counsel appearing for the appellant. The counsel for the appellant advanced the arguments stating that any order passed by any authority under the provisions of the Act is appealable. It is contended that arithmetical mistake has been crept in the Revisional order passed by the Deputy Commissioner and hence they filed an application under Rule 50 of the APCST Rules, 1957 for rectifying the arithmetical mistake. Now the point for consideration is:
Whether the appeal filed by the appellant over the order of endorsement dated 29 -12 -2009, passed by the Deputy Commissioner is maintainable?

(2.)POINT : - The impugned endorsement of the Deputy Commissioner on perusal shows that the Deputy Commissioner opined that after having received the Revisional order, the appellant if aggrieved could have filed appeals before this Tribunal within 60 days after receipt of the Revisional proceedings and having failed to do the same, he filed this petition under Rule 50 and it is being rejected as not maintainable since there are no arithmetical mistakes in the revision orders for rectification. However, the contention of the learned counsel for the appellant is that they addressed a letter dated 20 -10 -2009, followed by a registered notice dated 16 -12 -2009 to the Revisional Authority, in which they stated that the Deputy Commissioner would have applied the formula 12/112 to the gross turnover but applied a different formula as 2/100. Hence, they request the Deputy Commissioner to revise the proceedings under Rule 50 by adopting the correct formula. The Deputy Commissioner in his order found that the Commercial Tax Officer only applied two different tax rate rates i.e., at 8% for part of the assessment and 12% for the part of the assessment period. Hence, he proposed to levy tax at 12% on the turnover of Fitness Equipment as per Rule 5 read with Section 14 under residuary entry of seventh schedule. The assessee objected for it. The objection was rejected and levied tax @ 12%.
Perusal of the order passed by the Revisional Authority did not indicate application of wrong formula. We also do not find arithmetical error committed by the Deputy Commissioner in his Revisional order. Hence, in a way, the appellant wanted a further revision by the Deputy Commissioner under Rule 50, which is not permissible at all. In fact, the letter dated 20 -10 -2009 does not indicate that the appellant prayed for rectification of any arithmetical error but on the other hand the prayer reads "the appellant prays for a revision of the Revisional proceedings under Rule 50". At this juncture it is necessary to extract Rule 50 of APGST Rules, which runs as here under

50. Rectification of mistake apparent from record

1) Any assessing [ ...], appellate or revising authority may at any time within four years from the date of any order passed by him rectify any clerical or arithmetical mistake apparent from the record:

Provided that no such rectification which has the effect of enhancing an assessment or any penalty or fee shall be made unless the assessing, appellate or revising authority has given notice to the dealer [of his intention to do so and has allowed him reasonable opportunity of being heard.]

2) Where such rectification has the effect of reducing an assessment, penalty or fee the assessing authority shall make any refund which may he due to the dealer.

3) Where any such rectification has the effect of enhancing an assessment, penalty or fee, the assessing authority shall serve on the dealer a revised notice in Form B -3 [ ...] and thereupon the provisions of the Act and these rules, shall apply as if such notice has been served in the first instance.

4) [Any assessing authority may at any time within one year from the date of service of an assessment order passed by him, revise the order, in respect of the claim for deduction on account of returned goods, referred to in clause (b) of Rule 6, where the claim for deduction is received after the final assessment has been made, provided that the claim for deduction on account of such returned goods is preferred within a period of six months from the date on which the goods sold have been received back or the goods purchased have been returned as the case may be.

5) [the assessing authority shall order refund of the tax due to the dealer, if any, as a result of deduction allowed under sub -rule (4).]

(3.)A reading of the above Rule shows that the appellate authority or the assessing authority or the revisional Authority suo motu if comes to the conclusion that there is any arithmetical error can rectify clerical or arithmetical mistake apparent from the record. In case the rectification has the effect of enhancing an assessment, penalty or any fee, it shall be made only after issuing notice to the assessee. Strictly speaking, suo motu powers have been conferred under Rule 50 in favour of the Assessing Authority, Appellate Authority and the Revisional Authority for rectifying the mistakes. However, generally the authorities are entertaining the applications filed under Rule 50.

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