AYESHA A. MALIK, J.---Through this petition, the Petitioner has challenged order dated 14.11.2017 issued by Respondent No.3, Commissioner Inland Revenue Appeals-IV , Lahore on an application for rectification of order dated 5.6.2017 under Section 57 of the Sales Tax Act, 1990 ("Act").
2. At the very outset, learned counsel for the Respondents raised a preliminary objection on the maintainability of the instant petition on account of the fact that remedy of appeal is provided to the Petitioner in terms of Section 45- B of the Act. However it is noted that the order dated 14.11.2017 impugned before this Court under Section 57 of the Act is not an appealable order under Section 45-B of the Act. Hence the objection is repelled.
3. Learned counsel for the Petitioner argued that in terms of the appellate order under Section 45-B of the Act dated 5.6.2017, the Commissioner Inland Revenue Appeals-IV , Lahore held that action initiated by the department against the taxpayer was barred by limitation in terms of Section 11(5) of the Act. In terms of the order , she found that even though the Commissioner has the power to extend the period by recording reasons in writing but no order of extension was available on the record nor produced before her. Further that the parawise comments submitted by the department also did not provide for any extension order . Consequently she concluded that there was no such order available for extension, hence show-cause notice was issued beyond the period of limitation.
Consequently the appeal of the taxpayer was disposed of vide order dated 5.6.2017. Against this order , the department filed a rectification application under Section 57 of the Act and the Commissioner Inland Revenue Appeals-IV , Lahore changed her findings with respect to the notice under Section 11(5) of the Act being barred by time. In terms of the rectification order dated 14.11.2017, the Commissioner concluded that in fact extension was granted by the Commissioner and that the order was well within the prescribed time. Consequently calling this a mistake apparent on the record, she restored the appeal to its original number and fixed it for hearing. Learned counsel argued that the power of rectification under the Act does not authorize the Commissioner to change her legal opinion as issued in the original order dated 5.6.2017. Learned counsel further submitted that the power of rectification is limited to clerical errors or arithmetical errors in any assessment, adjudication order or decision but does not mean that the entire decision is changed and the appeal which was originally disposed of is restored for hearing. Learned counsel has placed reliance on Commissioner of Income Tax, Karachi v. Messrs Shadman Cotton Mills Ltd., Karachi through Director (2008 PTD 253 ).
4. Report and parawise comments have been filed on behalf of Respondents Nos.1 and 2. Learned counsel for the Respondents argued that the rectification application was given to correct the error made with respect to the findings on the point of limitation. Learned counsel argued that the order was passed in accordance with law after following due process and is well within the mandate of Section 57 of the Act.
5. The basic issue before the Court is with reference to scope of Section 57 of the Act which is reproduced hereunder: Correction of clerical errors etc. Clerical or arithmetical errors in any assessment, adjudication, order or decision may, at any time, be corrected by the officer of Inland Revenue who made the assessment or adjudication or passed such order or decision or by his successor in of fice; Provided that before such correction, a notice shall be given to the registered person or to a person effected by such correction.
6. In terms of this Section, an application for correction of clerical or arithmetical error can be made after issuing notice to the concerned party . It is settled law that clerical errors and arithmetical errors are essentially typing errors which are apparent from the face of the record but they do not mean errors of finding on facts or on the law. A rectification application allows the competent officer to correct a mistake which is apparent on the face of the record but does not allow re-assessment of the case or the compilation of a different opinion from one that was taken earlier . For this purpose remedy of appeal is available and in this case the department if aggrieved by the finding of the Commissioner could have availed its remedy of appeal. Instead they chose to move a rectification application on the basis of which Respondent No.3 changed her opinion from saying that the show-cause notice was barred by time to finding that it was not barred by time. This change of opinion is not a clerical or arithmetical error and does not fall within the scope of Section 57 of the Act. If this were to be allowed then all kinds of opinions could be changed under the garb of being a mistake or error on the face of the record. Hence it is against the spirit of Section 57 of the Act.
7. Respondent No.3 could not have changed her opinion under the rectification application and consequently could not have restored the appeal that she had originally disposed of. In fact she has reviewed her own order , changed her opinion and decided to re-hear the case that she originally thought was barred by limitation. In terms of the dicta laid down by the august Supreme Court of Pakistan in 2008 PTD 253 (supra), the liability of an assessee cannot be changed and the matters which were not part of the original adjudicatory process cannot be introduced in the rectification process. The concept of rectification is simply to correct error committed which is floating on the record being arithmetic or clerical but cannot be one which brings the material change to the order and change its complexion.
8. Under the circumstances, the instant petition is allowed , impugned order dated 14.11.2017 issued by Respondent No.3 is set aside, thereby declaring the action of the stated Respondent for being without jurisdiction.