TaxTMI 
TaxTMI 
2011 (1) TMI 54
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....quisition. It follows that interest payable and capitalized to the extent it relates to the amount of Rs. 24,24,50,000/- should also be disallowed. It was pleaded that the ITAT may set aside the quantification of interest payable and the determination of cost of acquisition to the Assessing Officer as the deduction of entire cost is not in consonance with the ITAT's decision on the cost of acquisition of the shares. 3. It is submitted that the assessee had allegedly acquired 1,26,94,805 shares of SVCL for Rs. 123,30,13,619/- which includes the non compete fee of Rs. 24,24,50,000/-. The cost of per share comes to Rs. 97.12 crores and even after excluding the non compete fee of Rs. 24.25 crores, the cost works out to Rs. 78.03 per share which is comparatively high when compared to the cost of acquisition of the shares by The India Cements Ltd considering the fact that the shares were acquired almost simultaneously in October, 1999. The India Cements Limited [of which the assessee is a wholly owned subsidiary] had acquired the shares of SVCL from nine companies of B.V. Raju Group @ Rs. 12.50 per share. The total number of shares purchased was Rs. 93,68,700 and th....
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....ill follow and at the most be said to could be after effect of the decision and in our considered opinion, section 254(2) of the I.T. Act does not authorize for doing the same because it would amount to reviewing the order which is otherwise not permissible in as much as a bare look at section 254(2) of the Act makes it amply clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting, it is an error; a fault, a misunderstanding, a misconception. 'Apparent' means visible; capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) is permissible where it is brought to the notice of the Tribunal that there is any mistake apparent from the record. Accordingly, the a....
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....erefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectification. 6.1 The assessee has failed to point out any mistake in the order with regard to this issue nor the same has been noticed by this Bench and in case application of the assessee is accepted, as rightly pointed out by the ld. DR, that would amount to review of the order of the Tribunal on this point which is not permissible under the law. Under rectification proceedings, the Tribunal is not empowered to review the order passed earlier and support can be taken from the decision of the Hon'ble Calcutta High Court in the case of CIT v. Gokul Chand Agarwal (202 ITR 14), which has dealt with the similar point and opined as under: "Section 254(2) of the Income Tax Act, 1961, empowers the Tribunal to amend its order passed under section 254(1) to rectify any mistake apparent from the record either suo moto or on an application. The jurisdiction of the Tribunal to amend its order thus depends on whether or not there is a mistake apparent from the record. If, in its order, there is no mistake which....
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....TS - NO NEED TO STATE SO IN APPELLATE ORDER SPECIFICALLY - INCOME TAX ACT, 1961, SEC. 254 Further it was held as under: "It is equally well-settled that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. Similarly the Bombay High Court i....