TMI Blog2018 (3) TMI 1456X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursed by the financial institutions as stated by the assessee in Para 4 (ii) of the M. P. As per the assessment order, the entire discussion is about allowability of deduction u/s 57 and there is no whisper about nature of loan. There is no discussion on this aspect also as to whether loan was received from financial institutions and if received than when received and how utilised. As per the tribunal order, the matter is restored to AO for fresh decision after examining the facts of the present case in the light of the judgment rendered in the case of Comfound financial Services [2007 (12) TMI 519 - KARNATAKA HIGH COURT]. Hence, in our considered opinion, there is no apparent mistake in this tribunal order which can be rectified u/s 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the facts of the applicant. 03. The Ld. DR vehemently opposed the rectification of the order. 04. We have heard the rival contention and have gone through the order of the Tribunal dt.13.09.2017. Before adverting to the issues raised by the assessee, it is required to have an understanding what can be a subject of rectification u/s.254(2) of the Act. Various High Courts as well as Apex Court have held clearly set out through various judgments what is a mistake apparent on record which can be rectified. This is succinctly summarised by Hon ble Madras High Court in the case of Express Newspapers v. DCIT [(2010) 320 ITR 12]. Pertinent parts of which are reproduced hereunder : 14. The scope and amplitude of s. 254(2) and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion mistake apparent from the record contained in ss. 154 and 254(2) has wider content than the expression error apparent on the face of the record occurring in order 47 r. 1 of CPC. The restrictions on the power of review under order 47 r. 1 of CPC do not hold good in the cases of ss. 254(2) and 154 of the Act. Sec. 254(2) does not confer power on the Tribunal to review its earlier order. Under the garb of rectification of mistake it is not possible for a party to take further chance of re-arguing the appeal already decided. What can be rectified under s. 254(2) is a mistake which is apparent and patent. The mistake has to be such for which no elaborate reasons or enquiry is necessary. Where two opinions are possible then it cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ably be no two opinions entertained about it, is a clear case of error apparent on the face of the record. Vide Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC), Honda Siel Power Products Ltd. vs. CIT (2007) 213 CTR (SC) 425 : (2007) 295 ITR 466 (SC), Hari Vishnu Kamath vs. Ahmad Ishaque (1955) 1 SCR 1104, CIT vs. Keshri Metal (P) Ltd. (1999) 155 CTR (SC) 531 : (1999) 237 ITR 165 (SC), Deva Metal Power (P) Ltd. vs. CIT 2008 (2) SCC 439, CIT vs. Hero Cycles (P) Ltd. (1997) 142 CTR (SC) 122 : (1997) 228 ITR 463 (SC), Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale (1960) 1 SCR 890, Thungabhadra Industries Ltd. vs. Government of Andhra Pradesh, Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale (1960) 1 SCR 890, this Court while spelling out the scope of the power of a High Court under Art. 226 of the Constitution ruled that an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record [see Sidhramappa Andannappa Manvi vs. CIT (1952) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no whisper about nature of loan. There is no discussion on this aspect also as to whether loan was received from financial institutions and if received than when received and how utilised. As per the tribunal order, the matter is restored to AO for fresh decision after examining the facts of the present case in the light of the judgment of Hon ble Karnataka High Court rendered in the case of Comfound financial Services, in ITRC No. 49 of 2000 dated 07.12.2007, copy available on record. Hence, in our considered opinion, there is no apparent mistake in this tribunal order which can be rectified u/s 254 (2). 05. We find no merit in this MP and it is dismissed. Order pronounced in the open court on 21st day of February, 2018. - - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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