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TMI Blog2004 (7) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, as per its conclusion in the order sought to be rectified - Accordingly, the appeals are allowed. The order passed by the Tribunal dated October 12, 2001 in each appeal is quashed. - - - - - Dated:- 14-7-2004 - Judge(s) : RAJESH BALIA., SHASHI KANT SHARMA. JUDGMENT The judgment of the court was delivered by Rajesh Balia J. - These four appeals arise out of the order passed by the Income-tax Appellate Tribunal on October 12, 2001, in each case on an application moved by the appellant-assessee under section 254(2) of the Income-tax Act, 1961, for rectifying its order dated February 22, 2000, passed in appeals relating to the assessment years 1993-94, 1994-95, 1995-96, 1996-97 (four years). The controversy for the present purpose pertains to the assessment of the income derived by the appellant-assessee by way of interest on debentures and securities for the aforesaid assessment years. The controversy has earlier been raised relating to the assessment years 1991-92, 1992-93 which has been the subject-matter of the decision of the Tribunal passed in I.T.A. Nos. 5/JP of 1992 and 1060 and 1061/JP of 1994 decided by a common order dated October 29, 1998. Ground No. 1 deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration. However, in the present appeals we are not concerned with the merits of the conclusion reached by the Tribunal in its order dated October 29, 1998 or the order dated February 22, 2000 passed in the Appeals Nos. 82, 83, 223 and 420/JP of 1998 for the assessment years 1993-94, 1994-95, 1995-96 and 1996-97. The assessee had appealed before the Tribunal against the order of the Commissioner of Income-tax (Appeals) confirming the addition on account of (i) interest on securities/debentures, (ii) expenses incurred on repairs and depreciation of guest house, and (iii) claim of bad debts. When the appeals were taken up for hearing, the authorised representative of the assessee submitted that all these three issues stand covered by the decision of the Tribunal in the case of the appellant for the assessment years 1989-90, 1991-92 and 1992-93 vide its order dated October 29, 1998 in I.T.A. Nos. 5/Jp/1992 and 1060 and 1061/Jp/1994. The learned departmental representative on behalf of the Revenue also agreed with the same. On this common premise, the Tribunal decided that issue in the following terms by its order dated February 22, 2000: "Keeping in view these facts and foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the open court." Aggrieved by this order dated October 12, 2001 passed in Miscellaneous Application No. 8/JP of 2000 relating to the assessment years 1993-94 to 1996-97, these four appeals have been preferred by the assessee. A show-cause notice was issued by this court on March 25, 2003. In response to the same, learned counsel for the Revenue has appeared. Both learned counsel have addressed fully about the order dated October 12, 2001 and no new facts are on record. We deem it just and proper to decide these questions at this stage itself. The substantial question which arises for consideration is: "Whether, on the facts and circumstances of the case, the application for rectifying the alleged mistakes apparent on the face of the record by rectification order can result in the revival of the order by recalling the order in its entirety enabling to pass a fresh order de novo on the issue?" At the outset, we must notice that the impugned order quoted above is a laconic and non-speaking order. It does not even record the satisfaction of the Tribunal that there exists a mistake apparent on the face of the record which needs to be rectified. The order only states that "to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective assessment year in question. There is further no controversy on the issue that the expression used by the Tribunal "allow the claim of the assessee in respect of interest paid by him as interest on securities/debentures" did not convey the order in terms of the controversy between the parties about interest receivable by the assessee decided vide order dated October 29, 1998, referred to above. This was a mistake apparent on the face of the record which needed to be corrected. Hence, the assessee had taken recourse to application under section 254(2) of the Income-tax Act to seek rectification of the said mistake rightly. It is also apparent that the order dated February 22, 2000, did not leave the question of allowability of the claim of the assessee to the exclusion of interest receivable by him to be decided afresh nor had decided it afresh. Therefore, there was no room for the Tribunal to have recalled the order dated February 22, 2000, on its conclusion about the allowability of exclusion of interest, income claimed by him from the computation of taxable income of the year for which it became receivable but was to be included in the income of the account period durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Jainarain Jeevraj v. CIT [1980] 121 ITR 358 opined that rearguing a point decided is not within the scope of rectification. Considering section 35 of the Indian Income-tax Act, 1922, corresponding to section 154 of the Act of 1961, the Madras High Court in CIT v. O.Rm. M. Sm. Sv. Sevugan [1948] 16 ITR 59 had held that : "section 35 has limited application . . . clearly the section does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected." It is also true that the power to rectify is not confined to correct only clerical or arithmetical mistakes, as is the case under section 152 of the Code of Civil Procedure and it is wider to include correction of any mistake of fact or law which is apparent from record, but it does not extend to revise or review the findings recorded in any order by recourse to fresh arguments, without there being any apparent error found in reading such finding of law and fact. In this connection, it will be apposite to recall that in T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50, the Supreme Court opined that if is not permissible for an officer in re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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