TMI Blog2001 (7) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee before the Gauhati High Court and the High Court had rejected the contention of the assessee and upheld the validity of issue of the notices. The Tribunal allowed the appeals filed by the Revenue vide its order dt. 24th Sept., 1993, passed in ITA Nos. 537 and 538 (Gauhati) of 1990. Being dissatisfied with the order dt. 24th Sept., 1993, of the Tribunal, the assessee filed miscellaneous applications for both the assessment years under consideration contending that certain decisions were relied on in support, of the assessee's view which were accepted by the CIT(A) but the Tribunal failed to consider the same. Having regard to the facts and materials of the case on record and on a careful consideration of the rival submissions, the Tribunal was of the opinion that its order dt. 24th Sept., 1993, should be recalled for consideration and accordingly the order, dt. 24th Sept., 1993, was recalled. Misc. Appln. Nos. 3 and 4 (Gauhati) of 1994 filed by the assessee were allowed by the Tribunal vide its order dt. 20th Dec., 1994, for both the assessment years. 3. Before we go further let us have, a look at section 254(1) and (2): "254. (1) The Tribunal may, after givin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. So, when we speak of amendment or rectifying the mistake the earlier order can never be recalled by the Tribunal. The earlier order must hold the field and the mistake can be rectified or amendment can be made to the order. In this connection let us have a look at the relevant portion of the CPC. Sec. 152 of the CPC gives the power to the Court for correction of the mistakes. Of course, it must be stated that the power under s. 2 (2) of the Act, is much wider than the power given under S. 152 of the CPC. The Supreme Court in connection with s. 152 of the CPC in Dwaraka Das vs. State of Madhya Pradesh AIR 1999 SC 1031 ; (1999) 3 SCC 500 pointed out as follows: "Sec. 152 of the CPC, provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders' after the judgment, decree or order. The settled position of law is that after the passing, of the judgment, decree or order, the Court or the Tribunal becomes functus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hardly be said to be an error apparent on the face of the record." 8. We have heard Sri U. Bhuyan, learned advocate for the IT Department, and Mr. D. K. Mishra, learned advocate for the respondent. Mr. Bhuyan, learned advocate for the Department made two fold submissions: (i) That in the garb of rectification of the mistake the earlier judgment/order cannot be recalled. (ii) That there was absolutely no ground as required by the mandate of law to recall the earlier judgment. Sri Bhuyan, in support of his contention places reliance on the following decisions: (i) T.S. Balram, ITO vs. Volhart Brothers (1971) 82 ITR 50 (SC): TC 53R.165 That was a case where the rectification was made by the ITO in the assessment of the respondent for certain years and the Supreme Court considering section 154 of the present Act has laid down the law as follows: "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions." (ii) CIT vs. K.L. Bhatia (1990) 84 CTR (Del) 152: (1990) 182 ER 361 (Del): TC 8R.1360: This is a case from the Delhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case from the Orissa High Court where the Division Bench of the Orissa High Court has laid down the law as follows: "A bare look at s. 254(2) makes it clear that a 'mistake apparent from the record' is rectifiable. In order to attract the application of s. 254(2), the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. 'Mistake' means to take or understand wrongly or inaccurately; to make an error in interpreting ; it is an error a fault; a misunderstanding; a misc ception. 'Apparent' means visible capable of being seen; easily seen; obvious; plain. A mistake which can be rectified under s. 254(2) is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration." We respectfully agree with this decision. (iv) CIT vs. Ramesh Electric Trading Co. (1993) 203 ITR 497 (Bom): TC S8,974: This is a case from the Bombay High Court wherein the Bombay High Court has pointed out that the failure of the Tribunal to consider an argument advanced by either party for arriving at a decision is not an error apparent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion about the validity of the notices under s. 34(1)(a) of the Act, and as it has been clearly opined to cancel this proceeding after lapse of so many years would not be proper. It is difficult for us to take any other view than expressed by the Court as pointed out above, the Gauhati High Court was clearly against cancellation of the notices after lapse of so many years and, therefore, we uphold the proceedings under s. 34(1)(a) taken by the AO. It will not be out of place to mention that the High Court also took into consideration the conduct of the husband of the present legal heir of the assessee in this matter. In view of this, we are unable to interfere with the others of the AO in respect of issuing notices under s. 34(1) (a) for these two assessment years." Thereafter, that judgment was recalled by the impugned order. 10. Sri Mishra submits that this recalling is absolutely within the purview of s. 254(2) of the Act and in support of this contention he places following decisions: (i) CIT vs. Mithalal Ashok Kumar (1985) 49 CTR (MP) 372: (1986) 158 ITR 755 (MP): TC 8R.1338: This is a judgment of the Madhya Pradesh High Court and the Madhya Pradesh High Court laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded in the above two paras of the appellate order proceeded on the basis of a mistake. Actually, the order of the CIT(A) at Chandigarh was the subject-matter of an appeal to the Tribunal at Chandigarh not by the Department but by the assessee. The Tribunal at Chandigarh had gone into the matter in detail and had arrived at the value of the consideration for the transfer at Rs.18,00,000. When this came to the knowledge of the assessee, an application was made to the Tribunal under s. 254(2) seeking a rectification of the original appellate order dt. 7th July, 1970. The Tribunal, by its order dt. 18th March, 1981, accepted the application. It was observed: 'The assessee had now pointed out that appeals were actually filed against the order of the CIT(A), Chandigarh, in the case of the other co-sharer, Smt. Rajeshwar Nath, and the above concession was made by the authorised representative of the assessee under a bona fide mistake of fact. Copy of the order of the Chandigarh Bench of the Tribunal in the case of Rajeswar Nath deciding the appeals of the Department arid the assessee dt. 17th Nov., 1980, had also been filed. The Chandigarh Bench has taken the value of 30 per cent carp ..... 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