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TMI Blog1982 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 for Rs. 1,50,000. The value of this asset as on 31-3-1971 was shown in the wealth-tax assessment as Rs. 3,93,000. The ITO invoked section 52(2) of the Act, on the basis that the fair market value of the property as on the date of transfer exceeded by more than 15 per cent of the full value of the consideration declared by the assessee and levied tax on capital gains substituting the full value of the consideration as Rs. 3,93,000. The contention of the assessee was that section 52(2) has no application to the case when the declared consideration is the real consideration. The ITO had never disputed the fact that there had been no understatement of consideration. He held that the fair market value exceeded by more than 15 per cent of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the records is to be rectified by dismissing the departmental appeal. It is contended for the revenue that there is no mistake apparent from the record because at the time of passing the order it was a good order in conformity with the law as settled by the Kerala High Court in Varghese and the Supreme Court had not then declared that section 52(2) is inapplicable in such cases and it is only thereafter the Supreme Court declared so. The mistake discovered as a result of the subsequent judgment of the Supreme Court, it is argued, cannot be a mistake apparent from the record. 4. Section 254(2) empowers the Tribunal to rectify any mistake in its order provided the mistake is apparent from the record. The provision is analogous to that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ult of subsequent interpretation of law by the Supreme Court may constitute a mistake apparent from the record and the rectification action is in order. In this connection, we refer to the decision in Walchand Nagar Industries Ltd. v. N. S. Gaitonde, ITO [1962] 44 ITR 260 (Bom.), Karamchand Premchand (P.) Ltd. v. CIT [1975] 101 ITR 46 (Guj.) and Chokshi Co. v. CIT [1980] 121 ITR 249 (Cal.). It has been held in these decisions that an assessment becoming invalid due to error of law on account of a subsequent decision of the Supreme Court can be rectified. 6. It is, therefore, clear that in order to bring the mistake apparent from the record it is not necessary for the assessee to establish that there was a mistake at the time of making t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue that the prescribed period of four years has now expired and, therefore, no rectification can be allowed. We are unable to agree. The proposal for amendment has commenced within the statutory period and the assessee had done what was necessary for rectifying the apparent mistake, by bringing it to the notice of the Tribunal. In such a case, expiry of the prescribed period of four years cannot be a bar for rectification. We may refer to the decision of the Allahabad High Court in Vithaldas v. ITO [1969] 71 ITR 204 where the assessee made an application for rectification within the prescribed period and no order of rectification was passed within the date, the High Court issued a writ directing the rectification after the expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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