TMI Blog2003 (2) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... us or patent about which no two views are possible. In that view of the matter, the said part of the order could not be subjected to section 254(2) of the Act for being rectified as a mistake apparent from the record since it does not seem to be a mistake nor it is so obvious, clear or patent to hold that it is apparent from the record. – Thus, we answer the question in the negative in favour of the Revenue. - - - - - Dated:- 14-2-2003 - Judge(s) : D. K. SETH., R. N. SINHA. JUDGMENT D. K. SETH J. -There was a search and seizure in the premises of the assessee. From the documents scrutinised, some expenditure was noticed to have been incurred by the assessee. But this expenditure does not find recorded in the books of account produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w its earlier order in Niranjan and Co. Ltd. v. ITAT [1980] 122 ITR 519 (Cal). It is only a mistake apparent from the record in its appellate order which can only be rectified in CIT v. Kelvin lute Co. Ltd. [1980] 126 ITR 679 (Cal). Under the garb of rectification, it is not possible to seek something other than rectification. The mistake, as expressed in Master Construction Co. Pvt. Ltd. v. State of Orissa [1966] 17 STC 360, 364 (SC), means a mistake apparent from the record but not a mistake that depends for its discovery on elaborate argument on questions of fact and law. We may note the distinction between the provision of section 254(2) of the Income-tax Act, and Order 47, rule 1 of the Code of Civil Procedure. In the former, rectifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, 141 ; Balaram (T. S.), ITO v. Volkart Brothers [1971] 82 ITR 50 (SC). A mistake apparent from the record is one to point out for which no elaborate argument is required. It must be glaring, obvious or self-evidenced mistake. If it is a mistake, which requires to be established by complicated process of investigation, argument or proof, it cannot be regarded as mistake apparent from the record. A debatable issue does not come within the scope of this provision in Smt. Nita Taneja v. Asst. CED [1995] 211 ITR 462, 464 (SC). Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions, facts and material on record. It is not disputed that the assessee was doing the business of construction and those expenses were incurred in the issue which was being constructed not as an investor and as the contractor. In these circumstances, even the expenses recorded in the seized papers are not debited in the books of account. No addition can be called for because the addition will be negated by the payments. This view had been taken by the Patna Bench of the Income-tax Appellate Tribunal in the case of Nishant Housing Development (P.) Ltd. v. Asst. CIT [1995] 52 ITD 103. However, it is to be seen whether the expenses claimed by the assessee in the regular books of account and expenses recorded in these seized papers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Tribunal had observed that it was to be seen whether the said expenditure was reasonable in the context of the construction done by the assessee. Such a finding can, at best, be a finding, which may be erroneous, but the alleged contradiction cannot be said to be a mistake apparent from the record. In order to be a mistake apparent from the record, the mistake must be free from doubt and incapable of different interpretation. Here in this case, the earlier part cannot be interpreted to be a clear finding and/or conclusion arrived at by the learned Tribunal. On the other hand, it was a general observation that no addition can be called for if negated by payments, as was observed by the Patna Bench in Nishant Housing Development (P.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as a mistake apparent from the record since it does not seem to be a mistake nor it is so obvious, clear or patent to hold that it is apparent from the record. Mr. Mallick had pointed out that the three judgments, which were relied on by the learned Tribunal in allowing the miscellaneous application for review are, in fact, wholly irrelevant and have no manner of application in the facts and circumstances of the case. The decision in Assam Co-operative Apex Bank Ltd. v. CIT [1978] 112 ITR 257 (Gauhati), does not seem to be of any relevance for our present purpose. The decision in Niranjan and Co. Ltd. v. ITAT [1980] 122 ITR 519 (Cal), provides that under section 254(2) an order can be rectified only when there is a mistake apparent fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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