TMI Blog2010 (5) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... l these years. As a matter of convenience, therefore, we take up all these three miscellaneous applications together for disposal by way of this common order. 2. The mistakes, as pointed out by the applicant, relate to the following observations made by the Tribunal in the impugned order : "In response to our putting the proposition that the assessee has sold such horses, foals or fillies which have no good potential in racing activities, and , therefore, the business activity of the assessee could not be said to breeding of horses, learned counsel emphatically submitted that breeding of horses is one of the business activity of the assessee, but he could not point out any instance in which the assessee has sold a racing horse" [Para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted" and that "based on the above misappreciation of facts that no racing horses have been sold and further that only racing discards have been sold, the Hon ble Tribunal came to the conclusion that the assessee was engaged in the business activity of owning and maintaining the race horses and consequently applied the provisions of section 74A(3) of the Income-tax Act to the facts of this case". It is submitted that the age of foals or fillies sold was hardly 2 to 3 years which is not sale of racing discards but of foals and fillies which were ready to participate in horse races. We are thus urged to recall the order and restore the appeal for fresh adjudication. Reliance is placed on the judgment of Hon ble Supreme Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the racecourse. We were of the view that in case someone s business is breeding horses for commercial gains, it would make commercial sense to sell horses with good race potential as well, and since there was no evidence to indicate that, we inferred that it is not the predominant activity of the assessee to breed the horses but to own and maintain the race horses. At this stage, we are not concerned, nor are we allowed to be concerned, whether this finding is free from doubt or not or whether the conclusion so arrived at was capable of another view being taken at or not; all that we have to see is that whether this finding is vitiated by a mistake apparent on record. 7. The case of the assessee is that since the foals and fillies were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l to the main activity of owning and maintaining the race horses". 9. There is thus no such mistake as may be apparent on record, even if there be one, which can be said to be apparent on record and on which two views are possible. The powers under section 254(2) can only be exercised when it is found that there is a mistake in the order of the Tribunal and the mistake is such that no two views are possible on the same. The powers under section 254(2) cannot be exercised for reviewing a considered and conscious decision on the grounds which are inherently subjective and capable of debate and discussion on adoption of one view or the other. 10. For the reasons set out above, we see no legally sustainable merits in the miscellaneous a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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