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2006 (11) TMI 175 - ALLAHABAD HIGH COURTRectification/ Recall of order u/s 254(2) - mistake apparent from the record - HELD THAT:- From the order of the Tribunal, we find that the Tribunal had drawn an adverse inference on the basis of the supplies made by the assessee-opposite party to some of the parties and giving one or two illustrations. It had rejected the application filed u/s 254(2) of the Act, on the ground that the goods mentioned at serial Nos. 14 and 16 of the statement of sales, were transported to Gorakhpur itself and the explanation of the assessee that the goods were sent to different places and the difference in the price was on account of difference in cost of cartage, etc., is misleading and false. It had further held that the miscellaneous application was filed by the assessee on the misconceived notion and there was no mistake apparent on the face of the record in the order of the Tribunal. Having come to the conclusion that there was no mistake apparent in the order of the Tribunal and the application was filed on a misconceived notion, it was not open to the Tribunal to entertain the second application which has been filed on the same set of facts and recalling the order, on the alleged premise that there was an error apparent in the order. In the case of T.S. Balaram, ITO v. Volkart Brothers [1971 (8) TMI 3 - SUPREME COURT], the apex court has held that 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 be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. Thus, we are of the considered opinion that the Tribunal was not justified in reviewing its order in the garb of rectification proceedings as there was no error apparent on the record and it could be discovered only after a process of debate. We accordingly, answer both the questions referred to us in the negative, i.e., in favour of the Revenue and against the assessee. However, there shall be no order as to costs.
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