TMI Blog2004 (9) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... light of material placed before us and precedents relied upon. We have also considered the written submissinos. The question posed before the Tribunal was whether the revenue authorities were correct in ascertaining the ALV for the assessment years 1990-91 and 1991-92. If there is no rent paid and in lieu of rent excessive deposit is being made, whether usufructus of the said deposit can be construed to be rent. After considering the factual details, Tribunal treated the usufructus of the deposit as rent for the user of the property. Tribunal considered the scheme of section 23 of the Act. It is imperative on the part of the Assessing Officer to first compute the value of the property as per section 23(1)( a ) of the Act, which prescribes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the jurisdictional High Court, enquiry as to the actual rent was made. While making such enquiry, the statement of Shri S. Vaidyanathan, Assistant Vice President and Head of Services Administration was examined. On the basis of the reply given by Shri S. Vaidyanathan vide question No. 8 that the interest free security deposit of Rs. 1,54,00,000 was given to the company as a part of compensation towards occupying the premises at Sakhar Bhavan, the Tribunal concluded that the deposit amount was the consideration for the user of the property. As such, the usufructus can be considered as the licence fee. 5. In view of the above, it cannot be said that mistake has crept qua the applicability of section 23(1)( a )/23(1)( b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to get the usufructus out of the amount of deposit. The tree of money was belonging to Citibank. They gave the tree of money to the assessee in consideration of the user of assessee s property. The assessee was not the owner of that tree. It had the right to get the fruits of that tree. That is usufructus, which was the consideration for the user of the property. Having regard to the facts we find no mistake in the order on this count. 7. Apropos the argument relating to the conclusion that there is no double taxation the Tribunal considered the object of section 23 of the Act. It was held that if the income is derived from the exploitation of the property, it is to be charged under the head "Income from house property". As the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different times, on the truth of each two conflicting allegations according to the promptings of his private interest. Reliance was placed on the dictum : - Allegans Contaria Non Est Audiendus " (he is not to be heard who alleges things contradictory to each other). This aspect is discussed in Para 24 of the order. Vide para 8 of the order, the submission of Shri Dastur was considered. Request was made to ignore the latter certificate issued by the builder. The Tribunal considered all the facts and circumstances and material produced and discussed at the time of hearing. It is not correct to say that the Tribunal ignored the letter dated 24-1-1994 from Citibank or any other document. All the factual details and arguments were taken into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification, it is not open for the assessee to reopen and reargue the whole matter. Unless there is manifest error which is obvious, clear and self-evident, the provisions of section 254(2) of the Act cannot be resorted to. What can be rectified under section 254(2) of the Act is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or inquiry is necessary. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to rectification proceedings contained under section 254(2) of the Act. 14. Now the question arise what is apparent mistake ? Various precedents are available to adjudge this is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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