Rectification for omitted adjudication and clerical error: an undecided ground and a typographical mistake were corrected in appeal.

An omitted adjudication of a ground raised in appeal can constitute a mistake apparent from the record where the final order leaves that issue undecided, and it is rectifiable in proceedings under the rectification power. The appellate record showed that the assessee's contention on conduit status and related taxability findings had not been expressly dealt with, so ground no. 5 was corrected and decided in favour of the assessee. An obvious typographical reference to ground no. 6 instead of ground no. 7 was also treated as a clerical error and corrected because it did not affect the substance of the order.

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Issues: (i) whether the omitted adjudication of ground no. 5 in the appellate order disclosed a mistake apparent from the record warranting rectification; (ii) whether the typographical reference to ground no. 6 in paragraph 13 required correction to ground no. 7.

Issue (i): omission to decide a ground raised in the appeals constitutes a rectifiable mistake where the record shows that the issue was left undecided in the final order.

Analysis: The applications pointed out that ground no. 5 had remained undecided in the earlier appellate order. The disputed ground related to the Assessing Officer's observations treating the assessee as a conduit entity and attributing profits to a permanent establishment in India. The record showed that the appellate discussion had not expressly rejected the assessee's contention on conduit status, and the impugned observations were found to be unnecessary for disposal of the appeal on the issue of taxability in India. In these circumstances, the omission amounted to a mistake apparent from the record.

Conclusion: Ground no. 5 was decided in favour of the assessee and the order was rectified accordingly.

Issue (ii): whether the incorrect mention of ground no. 6 instead of ground no. 7 in paragraph 13 was a clerical error capable of correction.

Analysis: The reference to ground no. 6 in paragraph 13 was inconsistent with the pleadings and the intended reference in the appellate order. The error was purely typographical and did not affect the substance of the decision.

Conclusion: The appellate order was modified by substituting ground no. 7 for ground no. 6.

Final Conclusion: Both miscellaneous applications were allowed and the appellate order stood rectified to the extent indicated.

Ratio Decidendi: An omitted adjudication on a raised ground and an obvious typographical mistake in the operative discussion are mistakes apparent from the record and may be corrected in rectification proceedings.

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