This appeal, by department, is against order dated 25-9-2009 passed by Commissioner (Appeals), who held rejection of application under section 221 as not sustainable in the eye of law.
2. The taxpayer moved an application for rectification of an ex parte order dated 23-12-2008 imposing penalty under section 182(3)/165 on default of filing withholding statements to quarters ended on September, 2005 and March, 2006. In support of the application, statements filed on 30- 6-2006 for both the above noted quarters along with acknowledgment receipts were filed. The taxation officer, however, rejected application vide order dated 4-4-2009 by holding that at the time of passing penalty order the statements produced were neither part of record nor were these produced by taxpayer despite proper service of notice. He relied on the famous case of National Food Laboratories (1991 SCC 869) to strengthen his point of view. In first appeal, the Commissioner (Appeals), vide impugned order, held the rejection of rectification order as not maintainable.
3. DR assailed the impugned order by placing reliance on the judgment by apex Court and contended that the statements should have been filed during penalty proceeding, which could not be taken as part of record now, for the purpose of rectification. On the contrary, the AR submitted that statements were filed on 30-6-2006, acknowledgment of which was produced. He continued by saying that the taxation officer could not have refused the rectification without verifying the acknowledgement of filing statements. He added that penalty order was passed on 23-10-2008, whereas the statements were filed in June, 2006, therefore, the same should have been taken as part of record for the purpose of rectification.
4. Heard learned representatives of the parties and record perused.
5. We are in agreement with the submissions of AR. Taxation Officer was duty bound to consult the relevant record to determine whether statements produced before him were filed on the date given in the acknowledgement receipts or not. If the filing of statements were found genuine, its absence from the record before Taxation Officer, during penalty proceedings, was beyond control of the taxpayer. Taxpayer could not have been penalized for any lacuna in system of the department due to which a document duly filed in June, 2006 did not become part of case record till December, 2008. In our opinion, the expression 'mistake floating or apparent from record' could not be narrowly interpreted. We, therefore, hold that a document duly filed becomes part of the record for the purpose of rectification and for all other judicial purposes, on the date it is duly filed.
We concur with the finding of Commissioner (Appalls) that rejection of rectification is not maintainable in the eye of law. Taxation Officer is directed to give effect of the evidence produced in rectification order, after confirming the veracity of the acknowledgments. Application for rectification shall be taken to be pending and the Taxation Officer shall pass a speaking order as directed within 45 days from the receipt of this order.
' Appeal is dismissed.