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TMI Blog2011 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... s of SVCL should be allowed as part of cost of acquisition. So, it was submitted that interest claimed by the assessee on total cost of the shares including the amount of Rs. 24,24,50,000/-allegedly paid as non-compete fee. The ITAT following the order of the Third Member has held that the amount of Rs. 24,24,50,000/- will not form part of the cost of acquisition. 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 Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legedly paid as non-compete fee is concerned, the ITAT, on the basis of majority opinion, has held that the amount of Rs. 24,24,50,000/- will not form part of cost of acquisition and department without pointing out any apparent mistake wants direction in rectificatory proceedings about something which has not been decided but which will 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; pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The mistake to be rectified must be one apparent from the record. A decision on the debatable point of law or undisputed question of fact is not a mistake apparent from the record. The plain meaning of the word apparent is that it must be something which appears to be so ex facie and it is in capable of argument or debate. It is therefore, 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn arguments or by a process of investigation and research, it is not a mistake apparent from the record. 6.3 Further, the Hon ble Supreme Court in the case of CIT v. Karam Chand Thapar and Br. P.Ltd. (176 ITR 535) has held under: APPELLATE TRIBUNAL - DUTY TO CONSIDER CUMULATIVE EFFECT OF CIRCUMSTANCES AND TOTALITY OF FACTS - 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 word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate rehearing of the appeal for a fresh disposal and doing so, would obliterate the distinction between the power to rectify mistakes and power to review the order made by the Tribunal. The scope and ambit of the application of section 254(2) is limited and narrow. It is restricted to rectification of mistakes apparent from the record. Recalling the order obviously would mean passing of a fresh order. Recalling of the order is not permissible under section 254(2) of the Act. Only glaring and any mistake apparent on the face of the record alone can be rectified and hence anything debatable cannot be a subject-matter of rectification. 6.5 Further, we place reliance upon Hon ble Delhi High Court exposition on the scope of rectification u/s 254(2) as reported in the case of Ras Bihari Bansal v. Commissioner of Income Tax (2007)293 ITR 365:- Section 254 of the Income Tax Act, 1961, enables the concerned authority to rectify any mistake apparent from the record . It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under this section. Similarly, failure of the Tribunal to consider an argument advanced by either party for arriving at a co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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