Section 161 - Rectification of errors apparent on the face of record


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.

Analysis:

What is the meaning of the term 'Mistake/Error apparent on the face of the record?'

This term has not been defined in the GST Acts. So, as per the judicial pronouncements, the following meaning can be derived:

'Mistake apparent from the record': It may be a mistake either of law or fact. But it should be possible to identify the mistake from the information available on record without requiring any additional evidence. If additional evidence is required or requires an examination or argument to establish it, then it is not a mistake apparent from record.

A debatable point or where two views are possible is not a mistake apparent from records.

Section 161 overrides which section of the CGST Act?

It overrides any provision of the CGST Act except 'Section 160 - Assessment proceedings, etc., not to be invalid on certain grounds.'

Whose order can be rectified?
Any authority's order can be rectified

What can be rectified?

• Any decision or
• Any order or
• Any notice or
• Any certificate or
• Any other document

What type of errors can be rectified?
Any error which is apparent on the face of record in:

• Any decision or
• Any order or
• Any notice or
• Any certificate or
• Any other document

How can the authority know about such error?
Either:

• On its own motion; or
• Where such error is brought to its notice by any CGST/SGST/UTGST Act officer or
• by the affected person

What is the time limit for such rectification?
Within 3 months from the date of issue of such:

• decision or
• order or
• notice or
• certificate or
• Any other document

Is there any maximum time limit to rectify?
Yes!

Rectification must be done within 6 months from the date of issue of such decision or order or notice or certificate or any other document.

When does the limitation period of 6 months doesn't apply?

Where the rectification is purely in the nature of correction of a
• clerical or
• arithmetical error,
arising from any accidental slip or omission.

What precautions must be followed before rectification?
Where such rectification adversely affects any person, the principles of natural justice shall be followed by the authority carrying out such rectification. Thus, the affected person shall be given an opportunity of being heard by the Authority before carrying out such rectification.

Case Laws:

Where assessee on enforcement of GST regime got itself migrated for purposes of GST as a partnership firm, but AA had registered it as a sole proprietorship, AA was directed to rectify this mistake

[2017] 86 taxmann.com 181 (Allahabad)
HIGH COURT OF ALLAHABAD
Sachdeva Overseas
v.
State of U.P.
WRIT TAX NO. 630 OF 2017
SEPTEMBER 8, 2017

Section 22, read with section 161, of the Central Goods and Services Tax Act, 2017 - Registration - Persons liable for - Assessee, a partnership firm, on enforcement of GST regime got itself migrated for purposes of GST as a partnership firm - Assessing Authority instead of issuing registration as a partnership firm, registered assessee as a sole proprietorship - Whether it was a mistake on part of Assessing Authority - Held, yes - Whether Assessing Authority was to be directed to rectify this mistake - Held, yes [Paras 3 and 5]

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Vivek Nahadia 
on 11 February 2019
Published in GST
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