9911796707
TMI Blog2001 (7) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... on which is almost undisputed is as follows: The assessee had filed an appeal before the Tribunal primarily challenging the reopening of assessment under section 147(a) for the assessment year 1985-86. By order dated November 24, 1993, a Bench of the Tribunal consisting of the President, Shri Ch. G. Krishnamurthy, and Shri Vimal Gandhi, Member, allowed the appeal. We are not very much concerned with various issues which were examined by the Tribunal for allowing the appeal in view of certain factual aspects with which we shall deal infra. Subsequently, the Revenue filed an application for reference under section 256(1) of the Act praying for a reference to this court which was numbered as R.A. 915/Dell996. An application for rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue again filed another application under section 254(2) of the Act on April 10, 1997. The prayer, inter alia, was to recall/review the original order dated November 24,1993, passed in I.T.A. No. 1356/Del/63 in the light of the aforesaid quoted portion of the order in M.A. No. 163/Delhi of 1994. The same was originally heard by a Bench consisting of Nathu Ram and U.B.S. Bedi. Though a copy of the order passed is available on record, one of the members Mr. Bedi did not sign the order and noted as follows: "There are certain reservations and other member had since retired, it may be fixed before a Bench". The file was released on June 1, 1999. Therefore, the Departmental Representative placed the matter before the Vice-President to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was mistake apparent from record in so far as the Tribunal's order dated November 24, 1993, in the appeal was concerned the Tribunal should have recalled the order dated November 24, 1993, for fresh adjudication. 'Therefore, as the court proceedings were not there before the Assessing Officer while passing the original assessment proceedings the findings/observations of the Income-tax Appellate Tribunal giving the impression that court proceedings were filed in the original assessment proceedings are contrary to record and thus constituted a mistake apparent from record. To this extent the order of the Income-tax Appellate Tribunal would stand rectified.' In the above view of the matter we recall the Tribunal's order dated N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... misconception. "Apparent" means visible, capable of being seen, easily seen, obvious, plain. A mistake which can be rectified under section 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. The language used in section 254(2) makes it clear that only amendment to the order passed under section 254(1) is permissible when it is brought to the notice of the Tribunal that there is a mistake apparent from the record. In our view, amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. Where an error is far from self-evident, it ceases to be an apparent error. It is no doubt true that a mistake capable of being rectified und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds errors which, after a judicious probe into 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. 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 section 254(2) 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 disputed question of fact is not a mistake apparent from the record. The plain meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of rule 24 of the Income-tax (Appellate Tribunal) Rules, 1963, and that too only in cases where 'the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex parte. This position was highlighted by one of us Justice Arijit Pasayat, Chief Justice) in CIT v. Income tax Appellate Tribunal [1992] 196 ITR 640 (Orissa). Judged in the above back ground the order passed by the Tribunal is indefensible. We may take note of the preliminary objection raised by Mr. Pandey, learned counsel for the Revenue, about the maintainability of the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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