TaxTMI 
TaxTMI 
TaxTMI 
2014 (4) TMI 1064
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....l feed supplement was not answered. By such other contentions stated in the application assessee says that these are rectifiable mistakes crept in final order for which recalling thereof would be justified. 3. Revenue opposed the application on the ground that the appellant is seeking review of the Final Order by a short-cut process without seeking appeal remedy, if any, available against the order of the Tribunal if it is aggrieved by that. By this application, attempt of appellant is to stall the recovery proceedings against appellant. 4. Heard both the sides and also pursued the application filed. The application is really a review application in the guise of an application for rectification of mistakes. Various contentions raised in the application calls for extensive examination of material facts and evidence as well as contentions of the parties made at the time of hearing appeal and nothing a mistake apparent from record by a glance. Tribunal does not have power of review under law since it becomes functus officio soon after passing an order. In the absence of any power to review like a Civil Court, it is not permitted in law to disturb the result of the appeal o....
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.... error apparent on the face of the record. 7. It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected must be such an error of law as can be regarded as one which is apparent on the face of the record. It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision. 8. In the case of Assistant Commissioner of Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. - 2008-TIOL-170-SC-IT = 2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R. 84 (S.C.), it is held that well-settled law is that the power of review is not an inherent power. Right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be re....
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.... on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. 10. In Satyanarayan Laxminarayan Hegde & Ors. v. Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890, Apex Court referring to Batuk K. Vyas and Hari Vishnu Kamath stated as to what cannot be said to be an error apparent on the face of the record. It was observed that : "An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. As the above discussion of the rival contentions show the alleged error in the present case is far from self-evident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. 11. In the present case, the appellant prays to review entire order and decide the appeal again on merit which is not permitted by law. In order to amend an order ....
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....make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under 35C(2) of the Act, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. 15. "Apparent" means visible; capable of being seen, obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." The plain meaning of the word "apparent" is that it must be somethin....
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....nt from the record" cannot be something which would have to be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that a decision on a debatable point of law cannot be a "mistake apparent from the record". In para 13 of the judgment in the case of A.S.C.U. Ltd. (supra) it has been held that the scope of correction which can be made by the Tribunal under Section 35C(2) is limited. Undoubtedly if a decision is based solely on material which is irrelevant or which could not have been used, then possibly it could be said that there is a mistake apparent from the record. However, if a decision is based on more than one material, then merely because in the process of arriving at the final decision, reliance was placed on some material which could not have been used it can never be said that in the final decision there is a mistake apparent from the record. This is because the final opinion could also have been based on the other material which was relevant and which could be used. 17. In the case of Poothundu Plantation P. Ltd. v. Agricultural ITO, Chittoor - 2004 (178) E.L.T. 16 (S.C.) in Para 4 it has been h....
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.... through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under Section 43A. Therefore it was held that Tribunal was justified in exercising its powers under Section 254(2) when it was pointed out to the Tribunal that the judgment of the coordinate bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material which was already on record. The Tribunal has acknowledged its mistake; it has accordingly rectified its order. Accordingly it was held by the Apex Court that the High Court was not justified in interfering with the said order. 19. Following the ratio laid down by Hon'ble Supreme Court in Deva Metal Powders Pvt. Ltd. v. Commissioner of Trade Tax, U.P. it may be stated that an error apparent on the face of the record for acquiring jurisdiction to effect rectification must be such an error which may strike one on a mere looking at the record and would not require any long drawn process of reasoning. The following observations in connection with an e....
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....them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the Court and thereby enjoyed a favourable verdict. This is amply evident from the explanation in Rule 1 of the Order XLVII which states that the fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. Where the order in question is appealable the aggrieved party has adequate and efficacious remedy and the Court should exercise the power to review its order with the greatest circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the Appeals) v. The Government of Andhra Pradesh represented by the Deputy Commissioner of Commercial Taxes, Anantapur [AIR 1954 SC 1372] held as follows : "There is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterized as vitiated by "error apparent". A review is by n....
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....art of the "record" for the purpose of examination under Section 154(1) of the Act. On the facts of this case, the order of assessment for the immediately preceding year which was rectified was undoubtedly a part of the record which was available for examination by the Income-tax Officer for the purpose of deciding as to whether there was a mistake apparent on the face of the record in the order of assessment for the immediately succeeding year, namely, the assessment year 1974-75." It was also view of the Hon'ble Court that "the record for the purpose of Section 154(1) is the record available to the authorities at the time of initiation of proceedings for rectification and not merely the record of the original proceeding sought to be rectified." But the appellant in the present case has failed to bring its case to the four of the judgment. 24. Justice demands that no mistake to perpetuate or persist on record and rectification thereof is sine qua non. To fulfil mandatory provisions of law to what extent an order shall undergo amendment is immaterial following the principles of law laid down by the Hon'ble High Court of Bombay in Blue State Co. (Bom.) Pvt. Ltd. v. CIT - 73 IT....
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.... The provision does not indicate that the Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under the Income-tax Act. Reference was made by Hon'ble Court in the case of Ms. Deeksha Suri v. ITAT - [1998] 232 ITR 395. At page 415, was made and the court pointed out as under : "Could any relief have been allowed to the petitioners in exercise of jurisdiction conferred by Section 254(2) of the Act amending the order passed by the Tribunal with a view to rectify any mistake apparent from the record? The language of the provisions is clear. The foundation for exercising the jurisdiction is 'with a view to rectify any mistake apparent on the record' and the object is achieved by 'amending any order passed by it'. The power so conferred does not contemplate a rehearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by....