Sec 161 – Rectification of errors apparent on the face of record

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Sec 161 – Rectification of errors apparent on the face of record 2017-04-14T02:04:28+00:00

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  • Miloni ShahMiloni Shah
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    Without prejudice to the provisions of section 160, and notwithstanding anything contained in any other provisions of this Act, any authority, who has passed or issued any decision or order or notice or certificate or any other document, may rectify any error which is apparent on the face of record in such decision or order or notice or certificate or any other document, either on its own motion or where such error is brought to its notice by any officer appointed under this Act or an officer appointed under the State Goods and Services Tax Act or an officer appointed under the Union Territory Goods and Services Tax Act or by the affected person within a period of three months from the date of issue of such decision or order or notice or certificate or any other document, as the case may be:
    Provided that no such rectification shall be done after a period of six months from the date of issue of such decision or order or notice or certificate or any other document:
    Provided further that the said period of six months shall not apply in such cases where the rectification is purely in the nature of correction of a clerical or arithmetical error, arising from any accidental slip or omission:
    Provided also that where such rectification adversely affects any person, the principles of natural justice shall be followed by the authority carrying out such rectification.

    Priya MadrechaPriya Madrecha
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    161.1 . Introduction
    While the authority to issue any decision, order, summons, notice, certificate or other document is expected to be free from errors, it is the duty of the authority issuing the same to correct any errors that do not convey the outcome of the process of law resulting in its issuance. This Section provides for an opportunity to make such rectification with some caution and due process being prescribed. 161.2  Analysis
    This Section begins with caution in stating that:
     no prejudice will be caused to the validity of proceedings listed in Section 161 from the defects that may be present in the documents concerned;
     but overrides all other provisions of the Act that may permit calling into question any deficiency in the documents.
    This Section provides for rectification of error or mistake apparent by the authority who has issued the document or on being brought to attention by CGST / SGST authority or the affected person. So there are three ways in which action can be taken under this Section. No person is entitled to take advantage of such errors or mistakes.
    The action permitted to be taken is to rectify an error or mistake apparent. Errors or mistakes apparent can cause difficulty in executing the directions contained in the document. This may require seeking the authority’s intervention to rectify.
    The power/jurisdiction to rectify is for any error or mistake which is apparent from record. The error must be self-evident and should not be discoverable by a long process of reasoning, where there is a possibility on points on which there may conceivably be two opinions. But the limiting aspect is that the power cannot be exercised to amend substantive part of the document concerned.
    The error may be a) factual, b) legal or c) clerical. All of them are rectifiable once it is shown that they are apparent on face of the record and not within the natural understanding of the authority at the time of issuance of the original document but which has crept in due to inadvertence or by reason other than exercise of judgement. Here the assessee, on a literal interpretation, cannot bring any document or evidence, not already available on record, to substantiate his claim for rectification.
    A time limit of 3 months is allowed for the affected person to bring to attention any such error or mistake. This time limit does not apply to a CGST / SGST officer from bringing it to the attention to the issuing authority or for making voluntarily rectification. However, no such rectification is permitted after 6 months from the date of its issuance.
    If any such rectification adversely affects any person, it is required that principles of natural justice should be complied with.  161.3 Comparative review
    Starting from Civil Procedure, all laws have provisions to rectify errors apparent on the face of the records including tax laws such as Income Tax Act, Central Excise, Customs, Service Tax and different Sales tax etc.
    161.4 Related provisions
    Statute      Section     /
    Rule / Form      Description
    Central Excise
    Act, 1984      Section 35C.
    Orders     of
    Appellate
    Tribunal.      The Appellate Tribunal may, at any time within six months from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it
    Chapter V of the Finance
    Act, 1994     Section     74.
    Rectification of mistake     With a view to rectifying any mistake apparent from the record, the 4[Central Excise Officer] who passed any order under the provisions of this Chapter may, within two years of the date on which such order was passed, amend the order.
    Income-tax Act, 1961     Section – 154     With a view to rectifying any mistake apparent from the record an income-tax authority referred to in Section 116 may,—
    (a)  amend any order passed by it under the provisions of this Act;
    Statute      Section     /
    Rule / Form      Description
    (b)    amend any intimation or deemed intimation under sub-Section (1) of Section 143;
    (c)    amend any intimation under sub-Section (1) of Section 200A;
    61[(d) amend any intimation under sub-Section (1) of Section 206CB.
    161.5 FAQs
    Q1. What errors may be rectified under the provision?
    Ans. Only errors, which are apparent on the face of the record, may be rectified under the provision.
    Q2. What is an error apparent on the face of the record?
    Ans. An error is apparent on the face of the record if it is evident from the record itself and does not require long drawn out reasoning.
    Q3. What are the types of errors, which can be rectified?
    Ans. Any error, which is apparent on the face of the record, may be rectified. Such error can be a) factual, b) legal or c) clerical.
    Q4. Is there a time limit to apply for rectification?
    Ans. The time limit is 3 months but extendable to 6 months. But in case of clerical or arithmetic mistakes, the 6 months outer limit is not applicable. Such clerical error must be due to accidental slip or omission.
    Q5. Who can seek rectification?
    Ans. The authority itself, an officer or the affected person can seek rectification.
    Q6. If a proceeding is pending before a higher forum can rectification be sought for?
    Ans.  As the provision is applicable notwithstanding other provisions, pendency of proceeding before higher forums is not a bar to seek rectification.
    Q7. If there is a material found out which has bearing on the decision whether rectification can be sought?
    Ans.  No. For that purpose, the error must be apparent on the face of the record. Therefore, outside material cannot be produced to rectify the decision.
    Q8. What is the scope of rectification? Whether any part of the order can be rectified?
    Ans. The provision expressly states that it cannot amend the substantive part of the decision etc.
    Q9. Whether the assessee is to be given notice?
    Ans. If there is an adverse effect then principles of natural justice has to be complied with. 161.6 MCQs
    Q1.     What errors may be rectified under the provision?
    (a)    Only errors which are apparent on the face of the record
    (b)    All errors of law and fact
    (c)    Only clerical error can be rectified
    (d)    Only if the error is by accidental slip or omission
    Q2.     What is an error apparent on the face of the record?
    (a)    If it can be proved by additional evidence not available at the time of passing the order
    (b)    If it is evident from the record itself and does not require long drawn out reasoning
    (c)    If it is error on points of law
    (d)    If it is only a clerical or arithmetic error
    Q3.     What is the time limit to apply for rectification?
    (a)    Normally 3 months extendable to 6 months in all cases
    (b)    Normally 3 months and on sufficient cause shown the delay can be condoned (c)     Strictly 3 months
    (d) Normally 3 months extendable to 6 months, but in case of clerical or arithmetic mistakes, the 6 months outer limit is not applicable.
    Q4.     Who can seek rectification?
    (a)    Only the authority itself
    (b)    The authority itself, an officer or the affected person
    (c)    Only an officer
    (d)    Only the affected person
    Q5.     If a proceeding is pending before a higher forum can rectification be sought for?
    (a)    No
    (b)    Yes
    (c)    With the permission from the Appellate Authority
    (d)    None of the above
    Q6.     What is the scope of rectification? Whether any part of the order can be rectified?
    (a)    Once it is proved that there is error apparent any part of the decision can be
    rectified
    (b)    Only the part dealing with legal aspect can be rectified
    (c)    Only the part dealing with clerical or arithmetic aspect can be rectified (d)     The authority cannot amend the substantive part of the decision etc.
    Q7. Whether principle of natural justice to be followed?
    (a)    As it is a quasi-judicial function the authority must give notice and follow principles of natural justice
    (b)    As it is only a rectification of apparent error principles of natural justice is not applicable
    (c)    If there is an adverse effect then principles of natural justice have to be complied with
    (d)    If it relates to assessment principles of natural justice have to be complied with

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