2018 Taxo.online 78

R/SPECIAL CIVIL APPLICATION NO. 4316 of 2018 dated 23.03.2018

CRUST FOOD COMPANY

ASSISTANT COMMISSIONER OF CENTRAL GST (DIVISION VI)

2018

GST

Central Goods & Services Tax Act, 2017

73, 74 and 85

Akil Kureshi, Justice & B. N. Karia

In favour of assessee

High Court

Gujrat

Represented by: – 

Petitioner: – Mr. Virat G Popat, Tirth N Bhatt 

Respondent: –  

Order: – 

1. RULE. Learned AGP Mr. Chintan Dave, who has been served with an advance copy, waives rule at our request. Since the issue involved is very small, we propose to dispose of this petition at this very stage.
2. The petitioner has challenged an order dated 09.01.2018 passed by the Assistant Commissioner of Central GST Division-VI, Ahmedabad, rejecting the petitioner’s application for rectification of an order of assessment. The said authority had passed an order dated 08.05.2017 confirming the petitioner’s service tax liability at Rs. 18,34,192/- for the financial years 2011-12 upto September 2016. He also levied interest and imposed penalties.
3. The petitioner filed an application for rectification of the 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 and decided in any proceeding by way of appeal or revision relating to an order referred to in subsection (1) the Central Excise Officer passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided, may be taken up for rectification of mistake whereas the said situation do not prevails in the instant case and if these is a mistabe apparent from the record than only the provisions of the section 74 can be invoked. The question of “mistake apparent from the record” is a now a settled law and this cannot be invoked to open an assessment which has become final under section 73. If this kind of view is taken, then it would amount to a back door entry, to circumvent the provisions of law under section 85. That is to say, that, if an appeal is not filed within time under section 85, the opportunity to reopen the assessment cannot be 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 treated for part of the period under consideration, the same was added for the remaining part which was an apparent error.
7. With these observations, the petition is disposed of. Direct service is permitted.