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TMI Blog2015 (1) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... ct with the findings and/or reasoning recorded by the appellate tribunal. Shorn of unnecessary details, the petitioner, a university recognized by the University Grants Commission. Because of Sikkim Manipal Health and Technological Science Act, 1995, constituted with an object to establish and incorporate Sikkim Manipal University of Health, Medical and Technological Science in the state of Sikkim. By virtue of an agreement dated 12th September, 1992 entered into between the state of Sikkim who was desirous of establishing the educational opportunities and health services with the manipal education and medical group, a registered trust who established medical, dental, nursing, pharmacy and other allied health training as under graduate, graduate and post graduate levels to create a centre of excellence of providing health, medical care, education and research facilities in the field of medical science and technology. A further agreement dated 15th September, 1998 was entered into between the state of Sikkim and Sikkim Manipal University, the petitioner herein, for establishment of a referral cum teaching hospital with super specialties facilities and the land measuring twenty five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2000 issued by the University Grants Commission, it is communicated that the institutions satisfied the conditions under Section 10 (23C) (iiiab) of the Act, University Grants Commission may not have a role to play as exemption is automatic. The petitioner appears to have filed applications in the year 2002- 2008 claiming an exemption under section 10(23C) (vi) of the said Act but subsequently withdrew the same. On 29th July, 2008 the petitioner made further application in prescribed format seeking an exemption for the assessment year 2009-2010 and 2010-2011. The said application stood dismissed as the petitioner is substantially financed by the Government of Sikkim and, therefore, cannot claim an exemption under Section 10(23C) (vi) of the said Act. However, it was observed that the petitioner can at best claim an exemption under Section 10(23C) (ii ab) of the said Act. In the mean time the return filed by the petitioner in terms of notice under Section 148 of the Act was taken up and an assessment order was passed on 29th December 2010. The petitioner filed four separate appeals against the assessment order passed on each assessment years, which was decided by a common judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case of T.Sl. Balaram, Income Tax Officer, Company Circle IV, Bombay -v- M/s Volkart Brothers, Bombay reported in (1971) 2 SCC 526. By contending that there is a distinction between an erroneous decision and a decision based on error apparent on the record, he relies upon a judgment of the Supreme Court in case of Deva Metal Powders (P) Ltd. -v- Commissioner, Trade Tax, Uttar Pradesh reported in (2008) 2 SCC 439. He strenuously submits that there is a distinction between a power conferred under Section 147 and Section 154 of the said Act which has its applicability in the different field and merely by changing the opinion in the guise of mistake apparent from the record for invocation of Section 154 of the Act is impermissible. To buttress the aforesaid submission, the reliance is placed upon a judgment of the Supreme Court rendered in case of Mepco Industries Limited, Madurai -v- Commissioner of Income Tax & another reported in (2010) 1 SCC 434. He thus submits that the rectification of mistake apparent from the record should be based on patent and obvious mistake and does not require elaborate debate to find the same as held in case of Commissioner of Central Excise, Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been held that a mistake apparent on the face of the record must be an obvious and patent mistake. It is held that "mistake apparent from the record" cannot be something which would have to be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. It has been held that a decision on a debatable point of law cannot be a "mistake apparent from the record"." In case of M/s Volkart Brothers (supra), the Apex Court while considering the scope of Section 154 of the Income Tax Act held that the mistake apparent on the record must be a patent mistake and not such mistakes which requires to be find out by a long-drawn process of reasoning in these words: "5. Section 113 of the Income Tax Act, 1961 corresponded to Section 17(1) of the Indian Income Tax Act, 1922, but that section has now been omitted with effect from April 1, 1965 as a result of the Finance Act, 1965. From what has been said above, it is clear that the question whether Section 17(1) of the Indian Income Tax Act, 1922, was applicable to the case of the first respondent is not free from doubt. Therefore the Income Tax Officer was not justified in thinking that on tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urately; to make an error in interpreting; it is an error, a fault, a misunderstanding, a misconception. "Apparent" means visible; capable of being seen; obvious; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming". A mistake which can be rectified under Section 22 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration." In a subsequent judgment rendered in case of Mepco Industries Ltd. (supra), the Supreme Court reiterated the ratio laid down in case of Deva Metal Powder Pvt. Ltd (supra) and ASCU Ltd. (supra) in these words: "18. Before concluding, we may state that in Deva Metal Powders (P) Ltd. v. CTT, a Division Bench of this Court held that a "rectifiable mistake" must exist and the same must be apparent from the record. It must be a patent mistake, which is obvious and whose discovery is not dependent on elaborate arguments. To the same effect is the judgment of this Court in CCE v. ASCU Ltd., wherein it has been held that a "rectifiable mistake" is a mistake which is obvious and not something which has to be established by a long-drawn process of rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpermissible under Section 154 of the said Act. It can at best be said to be change of opinion which obviously does not attract the invocation of the said provision. The matter can be viewed from another angle. The assessment order, passed on the return file in pursuance of the notice under Section 148 of the Act, was based on the fact that the petitioner is not entitled to an exemption under the said Section. The Appellate Tribunal reversed the said order with categorical finding that the petitioner is substantially financed by the Government of Sikkim and is, therefore, entitled to an exemption under Section 10 (23C) (iiiab) of the said Act. The CCIT is bound by the decision of the Appellate Tribunal which is admittedly a superior forum. The hierarchical system of dispensation of justice, which exists in our country, requires a strict adherence and respect to avoid any abuse or misuse of the power and conflict in views. The authority of the Court standing on a lower pedestal is bound by the decision of the higher authority or the Court and it is not open to disregard the decision. The reliance can be placed upon a judgment of the Supreme Court rendered in case of Dunlop India Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stay of the decision under appeal and that till an application for stay is moved and granted by the appellate court, in the alternative, the court which rendered the decision is moved and grants an interim stay of the decision pending the preferment of an apeal and grant of stay by the appellate court, the decision continues to be operative. Indeed, non-compliance with the decision on the mere ground that an appeal is contemplated to be preferred or is actually preferred, and that, therefore, the matter is sub judice, may amount to contempt of court punishable under the Contempt of Courts Act, 1971. The decision of the Supreme Court in Baradakanta Mishra v. Bhimsen Dixit, AIR 1972 SC 2466 places the matter beyond dispute, doubt or debate as regards this aspect." It does not require any debate on the proposition of law that the principle of res judicata cannot be applied in a matter of taxation because each year's assessment is final in that year and does not have any bearing at the time of determination of the tax for a subsequent period or other period as held in Installment Supply (P) Ltd. & Another (supra). It is not a case of the petitioner that the principle of res judicata ..... X X X X Extracts X X X X X X X X Extracts X X X X
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