2018 (8) TMI 1323 – GUJARAT HIGH COURT – 2018 (15) G. S. T. L. 519 (Guj.) – Rectification of an order of assessment – Case of petitioner is that the income from restaurant was exempt from tax – rejection of rectification application on the ground that this is not a case for exercising such powers of rectification – Held that:- The Assistant Commissioner has not stated why according to him what the petitioner pointed out was not an apparent error. Secondly, we are informed that the petitioner had, by way of abandoned caution, also filed an appeal. The question of circumventing the appeal route is therefore does not arise.
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The Assistant Commissioner is requested to pass fresh order of rectification application of the petitioner and specifically comment on the petitioner's contention that though his income from restaurant business was exempt and so treated for part of the period under consideration, the same was added for the remaining part which was an apparent error – rectificati
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he said order on 13.12.2017 in which, the petitioner took up only one contention viz. that the petitioner's income from restaurant was exempt from tax. The Adjudicating authority did recognize this fact for the financial years 2011-12 to 2013-14. However, when it came to the later period viz. financial years 2014-15 till September 2016, the exemption was totally ignored. As a result of this, sizeable amount of restaurant income was added to the taxable value of the petitioner's turn over. 4. The Adjudicating authority, by the impugned order, rejected such an application. He noted the statutory provision enabling the competent authority to rectify his own order subject to certain conditions. He was however, of the opinion that this is not a case for exercising such powers of rectification. According to him, a mistake can be rectified only if it is apparent from the record. His observations were as under: It can be seen from the above provision, if the matter has been considered
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e read into provisions of section 74. 5. Perusal of the above portion would show that the application of the petitioner was rejected on two grounds. Firstly, that there was no error apparent on the face of the record which could be rectified and secondly, entertaining such an application for rectification would circumvent the limitation period in case of a person who had missed the bus of filing of appeal. The Assistant Commissioner has not stated why according to him what the petitioner pointed out was not an apparent error. Secondly, we are informed that the petitioner had, by way of abandoned caution, also filed an appeal. The question of circumventing the appeal route is therefore does not arise. 6. Under the circumstances, impugned order is set aside. The Assistant Commissioner is requested to pass fresh order of rectification application of the petitioner and specifically comment on the petitioner's contention that though his income from restaurant business was exempt and so
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