Decided on January 08,1998

Razia Traders Appellant


Girija Jagannath, Member (A) - (1.) THE appellant filed rectification petitions in respect of the orders passed by this Tribunal in T.A. No. 458/94 and 459/94 dated 13th August, 1997. According to the petitioner, the orders of this Tribunal suffered from mistakes and this Tribunal being empowered to correct the mistakes, seeks rectification of our orders dated 13.8.1997. The powers of this Tribunal which is a creature of the Statutes to rectify or revise its orders are limited and the position of law in this regard is settled. Dealing with the Madras General Sales Tax Act in the case of C.B.B. Thandava Rao v. State of Madras (The Madras High Court) (XV STC p.22), the Madras High Court held as follows: - - "Under Section 55 of the Madras General Sales Tax Act, 1959, the rectifiable error must be manifest and self -evident on the face of the record and the error may be one of fact or law. But, it must be one which is apparent and not lurking, which can be seen and is not hidden. Where special enactment confers a power of review to the Tribunal of its creation in restricted terms, it is implicit that the power cannot be enlarged or extended beyond the statutory restrictions, in the guise of an inherent power". In the case of State of Andhra Pradesh v. Kesoram Cement (3 APSTJ p.163), the Andhra Pradesh High Court upheld the Tribunal's order that it had inherent jurisdiction to set the wrong committed by itself when that wrong causes prejudices to a party, for which that party is not responsible. Under Rule 50 of the APGST Rules, the Tribunal can only review arithmetical and clerical errors. But still rectification of a patent wrong committed by the Tribunal is different from reviewing an order either on question of law or of fact. Such inherent power to rectify a wrong committed by itself by a Court or Tribunal not really speaking the power to review. It amounted only to rectifying a wrong committed by itself which resulted in prejudice to the party without his contributing to such wrong. It has to be seen that whether this Tribunal has committed any such patent wrong resulting in prejudice which call for rectification of the orders passed by this Tribunal in T.A. No. 458/94 and 459/94, dated 13.8.1997
(2.) THE points raised in the rectification petitions are dealt one by one: (i) It is urged that the Legislature empowered the State Government under Section 39(2)(d) of the APGST Act to frame rule for rectification of mistakes apparent from the record of any assessment/appellate or revisional order. The clause is not qualified as to the nature of mistakes. But in the Rule 50 of the APGST Rules the power of rectification was abridged so as to cover only clerical and arithmetical mistakes. Therefore, Rule 50 was in excess of authority delegated and is void. This Tribunal is not empowered to adjudge the validity of the Rule vis   -vis the power delegated under Sec. 39 of the Act. This is not the right Forum or context for agitating this ground. (ii) that the Tribunal's orders dated 13.8.1997 were erroneous for the reason that while Section 14(4) of the Act confers on the assessing authority power to assess to tax only the escaped turnover, the authority, however, made re -assessment. This is a repetition of the ground taken in the original appeals and rejected by this Tribunal as not tenable. No rectification can lie on this ground. (iii) that the Tribunal also erred in holding that turnover not disputed before the First Appellate Authority cannot be disputed before the Tribunal. This can be a ground for tax revision, but not a ground seeking for rectification of the Tribunal's orders as it is neither a clerical nor arithmetical mistake as mentioned under Rule 50 of the Act. Nor is it a patent mistake resulting in prejudice to the assessee, for which he is not responsible. (iv) that Hides and Skins are not liable to tax under the APGST Act or even under the CST Act that expression generally exempted and used in Section 8(2 -A) of the CST Act as not being construed properly. This may also form a ground for filing tax revision and not for seeking rectification. It is already urged in the written grounds submitted by the counsel for the appellant in the course of hearing of appeals and dealt with in our order. That Section 6(a) was misconstrued as it was wholly inapplicable to this case. This ground is also not a valid ground for rectification.
(3.) THE annexure to the petitions is headed 'COMPOSITION'. After elaborating the nature of composition supported by case law it is urged that one cannot record a composition proceeding and another make use of it. It cannot be pressed into service for making assessment or for levy of penalty. This aspect was covered by this Tribunal's order and not one which calls for rectification of the said order.;

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