IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.02.2010 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE P.P.S.JANARTHANA RAJA W.A.Nos.3201 to 3204 of 2004 Khivraj Motors Limited rep. by its Director, Ajit Kumar Chordia .. Appellant in all WAs. Versus 1. Assistant Commissioner (CT), Fast Track Assessment Circle-III, Chennai. 2. Assistant Commissioner (CT), North Zone, Chennai. .. Respondents in all WAs. Appeals against the common order in W.P.Nos.38111 to 38114 of 2003 dated 16.04.2004 on the file of this Court presented under Article 226 of the constitution of India to issue a Writ of certiorari calling for the records in No.R.C.No.1850/2003/A1 dated 9.12.2003, relating to assessment year 1) 1994-95 2) 1995-96 3) 1996-1997 and 4) 1997-98 respectively and quash the same and direct the first respondent to pass an appropriate order after hearing the petitioner and examining the documents. For Petitioner : Mrs.Dr.Anita Sumanth For Respondents: Mr.Haja Naziruddin, Spl. Govt. Pleader (T) * * * * * J U D G M E N T (Delivered by D.Murugesan,J.) These appeals challenge the common order passed in the writ petitions whereby all the writ petitions were dismissed by order dated 16.04.2004. 2.The brief facts leading to these appeals are as follows:- https://hcservices.ecourts.gov.in/hcservices/ The appeals relate to assessment years 1994-95, 1995-96, 1996- 97 and 1997-98. The appellant/assessee is the registered dealer under the Tamil Nadu General Sales Tax Act and Central Sales Tax Act. The assessee is dealing with purchase of vehicles from other States and bring them into the local area and sell them to its local customers. At the time the vehicles were brought inside the local area, they had paid 13% entry tax in terms of the provision of Section 3 of the Tamil Nadu Tax on Entry of Motor Vehicles into Local Areas Act, 1990 (hereinafter referred to as 'the Entry Tax Act'). They had also paid 8% sales tax under the Tamil Nadu General Sales Tax Act (hereinafter referred to as 'the Local Act') upto the period 16.07.1996 and thereafter 11% for the subsequent assessment years. They claimed the proportionate reduction in tax liability in terms of Section 4 of the Entry Tax Act and consequently, refund of the excess tax paid in terms of Section 11 of the Entry Tax Act. As the said claim was negatived, the appellant filed applications before the Assistant Commissioner (CT), Fast Track Assistant Circle (III), Chennai, under Section 55 of the Local Act for rectification. That applications were rejected by orders dated 09.12.2003 on the ground that after adjusting the tax payable by the petitioner under the Tax, Surcharge and Additional Sales Tax, there is no excess amount to be refunded as per the assessment order. Those orders were questioned by way of writ petitions before this Court. 3.The learned Judge, while dismissing the writ petitions, found that on the facts of the given case, the applications under section 55 seeking rectification cannot be entertained. Hence, the appellant has approached this Court by way of present writ appeals. 4. Insofar as the entitlement of the provision of Section 4 relating to the reduction in tax and Section 11 relating to the refund, we may refer to our judgment in W.A.Nos.546 to 548 of 2006 (The Commercial Tax Officer v. M/s.Coimbatore Auto Garage (P) Ltd., rep. by its Managing Director), dated 20.01.2010. In that case, we had an occasion to consider a similar claim of a dealer in automobiles and spare parts, who had paid 13% entry tax and 11% and 12% sales tax respectively for the assessment years 1998-99, 1999- 2000 and 2000-01 under the Local Act and held that whatever be the excess amount paid by the assessee by way of entry tax, it should be reduced and the difference, if any, shall be refunded. In that judgment, in fact, we followed the Division Bench judgment of this Court in State of Tamil Nadu v. Ganesh Automobiles, (2004) 134 STC 272, wherein this Court had held that whenever excess tax was paid by way of entry tax, it could be adjusted by the assessee while paying the sales tax to the extent of the excess amount paid. As far as the factual aspect of the present case is concerned, the appellant, who is also a dealer in automobiles has in fact paid 13% entry tax and 8% and 11% sales tax under the Local Act and by such payments, the appellant has paid excess tax and therefore, the applicability of the https://hcservices.ecourts.gov.in/hcservices/ provisions of Sections 4 and 11 of the Entry Tax Act cannot be disputed. 5.The appellant made a request for reduction in tax liability and refund of excess amount paid, which was negatived on the ground that there was no excess amount of tax paid and therefore, the appellant had filed applications under section 55 for rectification, on the ground that an error apparent on the face of record had occurred. For such submission, in fact, it was contended that when excess entry tax was paid, the finding that there was no excess amount is a factual mistake apparent on the face of record. This contention was rejected and consequently, the applications for rectification were also dismissed. 6.In this context, we may mention whether on the given facts of the case, an application for rectification could be filed. Section 55 of the Tamil Nadu General Sales Tax Act empowers either an assessing authority or an appellate authority or a revisional authority including the appellate Tribunal to pass an order to rectify any error apparent on the face of record. Such a power could be exercised by the respective authorities at any time within a period of five years from the date of any order passed by the respective authorities. Nevertheless, in terms of proviso to the said section, no such rectification, which has the effect of enhancing the assessment or any penalty, shall be made unless such authority has given notice to the dealer and has allowed him a reasonable opportunity of being heard. For the purpose of present controversy, the provision of sub-section (1) of Section 55 alone could be made applicable. 7.This takes us to the question as to what is meant by an error apparent on the face of record. In our opinion, when an order is passed contrary to the provisions of the statute or the judgment of the High Court or the Supreme Court, which are covered on the issue and binding on the authorities have not been considered or when the factual aspect had not been correctly stated, a mistake would occur on the face of record. Factually, it is not in dispute that under the provisions of Entry Tax Act, the appellant/ assessee should pay 13% entry tax and they had also paid and equally, under the Local Act, the assessee had to pay 8% upto 16.7.1996 towards sales tax and thereafter, for the subsequent assessment years they should pay 11% sales tax, which also they had paid. The percentage of tax to be paid under the respective Acts if considered, the appellant/assessee had to pay excess of tax under the entry tax and therefore, the finding of the authority that there was no excess tax collected or available is factually incorrect, which may be rectified. 8.Mr.Haja Naziruddin, the learned Special Government Pleader, would, on the other hand, submit that the application of Sections 4 and 11 should also be considered with reference to the entries https://hcservices.ecourts.gov.in/hcservices/ relating to the tax to be paid under the Entry Tax Act. Once a specified quantum of tax is prescribed under the entries, such tax cannot be adjusted in terms of Section 4 and Section 11 of the Entry Tax Act. In our opinion, the said argument cannot be accepted in the wake of the judgment of Ganesh Automobiles's case, referred supra, which we have followed subsequently in Coimbatore Auto Garage (P) Ltd. case. In that view of the matter, the rectification applications should have been entertained by the authorities concerned. 9.The Apex Court in Commissioner of Central Excise, Calcutta v. A.S.C.U. Ltd., (2003) 151 ELT 481, has held that a rectifiable mistake is a mistake which is obvious and not something which has to be established by a long drawn process of reasoning or where two opinions are possible. In our opinion, in the given case, there is no question of long drawn process to give a reason and there is no question of possibility of two opinions and equally, we find there is no debatable issue involved in this case. We may also refer to the judgment of the Supreme Court in Deva Metal Powers (P.) Ltd. v. Commissioner, Trade Tax, U.p., (2008) 2 SCC 439, wherein it has been held that the only requirement for rectification is that the mistake must be a rectifiable mistake and the same must be apparent from the record. The facts of the present case also falls within the law laid down by the Apex Court in the above judgments. 10.There is one more aspect in this case and that is, even when the judgment of the Courts are produced for entitlement of reduction in tax and consequent refund and when the same has not been taken into consideration, it could be termed to be a mistake apparent from the record and the same could be rectified, as has been held by the Supreme Court in Assistant Commissioner of Income-tax v. Saurashtra Kutch Stock Exchange Ltd., (2008) 305 ITR 227. 11.We may also refer to the object of the Entry Tax Act, which is only to curb the evasion of sales tax on the sale of motor vehicles, which are purchased outside the State and brought into this State. In the process, the State is entitled to levy entry tax as well. But, for the purpose of giving benefit for the dealer, who is liable to pay both entry tax and local sales tax, the provision of Section 4 has been made for proportionate reduction in liability whenever the entry tax is paid on the higher side. When once Section 4 is made applicable, correspondingly the excess amount if any paid by the dealer is to be refunded in terms of Section 11 of the Act. 12.For all the above reasons, the applications of the appellant/assessee seeking for rectification ought to have been accepted by the authorities concerned. In that view of the matter, the orders impugned in the writ petitions are liable to be set aside and accordingly, set aside. Consequently, the order passed in the https://hcservices.ecourts.gov.in/hcservices/ writ petitions is also set aside. The writ appeals are allowed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To 1. The Assistant Commissioner (CT), Fast Track Assessment Circle-III, Chennai. 2. The Assistant Commissioner (CT), North Zone, Chennai. 4 ccs To M/s.D.Anitha Sumanth, Advocate, SR.7066 1 CC to the Spl. Government Pleader, SR NO 7367 W.A.Nos.3201 to 3204 of 2004 KSK(CO) sra 18.02.2010 https://hcservices.ecourts.gov.in/hcservices/