2016 (2) TMI 1326

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.... the assessee was completed u/s 143(3) of the Act determining the income of the assessee at Rs. 1,87,87,420/- . The assessee along with his brother Shri Bharat R. Patel received amount from builder which was considered as income from other sources by the AO after looking into nature of the receipt treated the same as income from other sources. Against the order of AO, the assessee preferred an appeal and the CIT(A) in its order dated 31.03.2010 on the appeal by assessee, the CIT(A) granted relied to the assessee holding that the amount received by assessee against sale of TDR are not chargeable to capital gain tax. 2. On the application of AO for rectification of order, the CIT(A) issued a notice u/s. 154 dated 09.07.2010 along with the ....

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....d to the relief claimed by the assessee and passed the order on merit of the case and it cannot be said that there is any mistake apparent in the case of assessee. 4. The Ld. DR for revenue supported the order passed by CIT(A). 5. Before analysing the impugned order, let us examine the scope of section 154 of the Act which empower the revenue authority to make rectification in its order, the Hon'ble Apex Court in Land Mark case of ITO vs. Volkart Brothers [(1971) 82 ITR 50 (SC)] explained the scope of section. 154. "....A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. ....

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....o the record from which it is supposed to emanate, are discerned. The word "mistake" is inherently indefinite in scope, as 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. 9. The plain reading of word (apparent) is that it must be something which appears to be so ex-facie and is incapable of argument or debate. 10. The Ld. CIT(A) while making rectification in its order dated 31.03.2010 on the petition filed by the AO dated 01.07.2010 has observed that in the case of Bharat R. Patel which was also decided on the same day have treated the amount received as capital gain. The CIT(A) after comparing and discussing both the orders passed by hi....