TMI Blog2011 (8) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... VEERABHADRAPPA, HARI OM MARATHA, H.S. SIDHU, SANJAY ARORA AND B.C. MEENA, JJ. Prakash Narain for the Appellant. Homi Rajvansh for the Respondent. ORDER Hari Om Maratha, Judicial Member These Miscellaneous Applications (M. As.) arise out of above captioned interest tax Appeals, which have been tiled under section 17(1) of the Interest tax Act, 1974, praying for rectification of mistakes apparent from record. Since, all these M. As arise out of a common order of the Tribunal dated 14.08.2003, these are decided together, by a common order. 2. The appellant has sought rectification of the Tribunal Order in question by raising an effective ground that ground no. (5) taken in the appeal, which is common in ail the years remained un-adjudicated. This is ground No. (5) in all the appeals, which is common, and reads as under :- "Ground No. (5) - Because the ld. CIT(A) has misdirected himself in completely ignoring the plethora of evidence and case law adduced before him to the effect that the appellant is an owner as defined in clause (f) of section 2 of Hire Purchase Act, 1972 and not a 'money-lender' under the Money-Lending Act". 3. It was submitted that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from record and can be rectified as prayed for. 7. We arc cautious of the legal position that in the guise of rectification, we cannot rewrite or review our order. But within the four corners of the law with the aid of precedents, we can rectify "mistakes apparent from record'' which are patent and obvious. The perusal of the records reveal that the Tribunal has definitely discussed the nature of mode adopted by the assessee but the issue regarding money-lending as contained in ground (5) which is common in ail these years remained undecided. If any mound remained undecided it tantamounts to a mistake apparent on record. It was alleged that the decision of Hon bio Apex Court in the case of Charanjit Singh, Chaddha v. Sudhir Mehra AIR 2001 SC 3721 which was filed at pages 1 14 to 125 of assessee's Paper Book and decided on 31.08.2001, was not considered by the Bench and it also amounts to a mistake apparent on the record. The perusal of the records shows that the assessee has enclosed this decision as stated above and the same find no mention in the Tribunal Order. This. definitely amounts to a mistake apparent on record which has crept into the order. Reference can be made to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by it vide, among others, para numbers afore-referred, and which covers the assessee's ground no. 5 as well, is, whether the assessee's activity, as undertaken, is one of hiring, which would thus fall within the purview of the Hire Purchase Act, 1972, or one of financing, so that the charges received by it, qualify to be considered as an interest, and, thus, subject to the Interest Tax Act. 1974 ('the Act' hereinafter). The holding of the assessee's ground No. 5 as general in nature has to, if at all, be read or construed in this context. 1.3 The Id. Counsel before us has not been able to show as to either if the understanding of the issue by the Tribunal is not correct or the issue that is sought to be raised before the Tribunal vide its said ground (#5), is any different. If the issue as sought to be raised is the same, as it indeed is. and which stands considered and decided, there is no question of any non-adjudication at the Tribunals end. An assesses, in order to successfully invoke the provision of s. 254(2). must exhibit, even if without reference to any ground, if any prejudice stands caused to it per the adjudication by the Tribunal, i.e. so long as it is in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the ground under reference, any other reading of the Tribunal's order amounts to a review, which the Tribunal is proscribed to. 2. The objections as listed per para 3(i) and 3(ii) of its M.A. again, and as also discussed earlier, do not qualify to be considered as a wrong assumption of fact(s) by the Tribunal. Its order, when read holistically, as it has to be, rather, show proper application of mind, considering, all respects of the matter, including those that stands highlighted by the assessee. Reference in this context is drawn to, inter alia, para nos. 6, 12, 14, 33, 35 r/w 36 of its order. As pointed out by it in the order itself, vide para no. 32 thereof, the manner of reading the judicial pronouncements stands explained by the Apex Court vide its judgement in the case of Padmasundara Rao (supra) Sun Engineering Works (P.) Ltd. (supra) which as apparent is being overlooked by the assessee. 3. The non-consideration of the decision by the Apex Court in the case of Charanjeet Singh Chaddha (supra) nowhere stated by the assessee in its M.A. which runs in 3 pages nor stood argued by the ld. A.R. during the course of hearing. The same is in relation to a criminal complaint, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on order dated 14.8.2003, the Tribunal has already disposed of the same. The assessee's claim that it is not disposed of, according to him, was factually incorrect. He was of the view that the Tribunal dismissed the said ground by holding the same to be general in nature but that would not mean that there has been a non-disposal of any ground, for, the whole reading of the order shows that the matter on which the assessee was agitating had got disposed of in its wholeness. Ground No. 5, according to him, when read with other ground is whether the assessee's activity, as undertaken, is one of hiring which would fall within the purview of the Hire Purchase Act, 1972, or one of financing, so that the charges received by it qualified to be considered as an interest and, therefore, subject to interest Tax Act, 1974. The holding of the assessee's ground No. 5, if at all as general in nature, has to be read in this context. According to him, in view of the express adjudication of the grounds under reference, any other reading of the Tribunal order amounts to a review, which the Tribunal is not entitled to do within the meaning of Section 254(2); of the Act. 6. I may point out that one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 to have given reasons why it considered the said ground to be general, in other words, they should have been a little more reasoned in this decision, but, it cannot be said that this ground itself is not disposed of by the Tribunal if one were to closely examine all the grounds of appeal which were basically on the issue whether the interest in question is liable to be taxed under Interest Tax Act, 1974. It can be construed as a short and sweet disposal and not based on detailed reasoning. The shortness of the order by itself does not negate the fact of disposal of the issue involved. Here, as pointed out by the learned AM, with whom I see a convincing reason to accept, ground No. 5 is part of ground Nos. 2 3 which read as under:- "2. Because the authorities below ought to have appreciated that 'interest' on loans and advances as envisaged to be liable to Interest Tax under the Interest Tax Act and 'hire charges' on hire-purchase transactions are two distinct and separate phenomena with a clear line of demarcation between the two. 3. Because the impugned orders under appeal are full of conjectures surmises in complete disregard of the fact that the appellant on one hand a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has not been disposed of. It may be that the Division Bench which heard the appeal has construed ground No. 5 to be general in nature as it had already taken a view against: the assessee on ground Nos. 1 to 3. They are very much connected to each other. If for arguments sake we are to accept the assessee's contention, and justify the recalling of the order on one aspect of the matter regarding the plethora of evidences and case laws to the effect that the assessee is the owner as defined in clause (f) of Section 2 of Hire Purchase Act, 1972 and not a money-lender under the Money-Lending Act, it may result in a situation where different aspects of the same issue will get different treatment resulting in self defeat of the decision taken on the other issues. Highly debatable contradictions may arise out of such an action on the part of the latter Division Bench to give a finding whether there are obvious, glaring and patent mistakes in an order given by the Division Bench earlier. It must be appreciatesd that the scope of Section 254(2) is very limited. The Tribunal in the garb of rectifying certain mistakes cannot defeat its own order on the same issue on a different aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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