TMI Blog2000 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... record in relation to the addition of unexplained investments to the extent of Rs. 6 lakhs. In the application filed under section 254(2) of the Act, the assessee had taken the stand that the Tribunal's conclusions were not in accordance with the facts on record. It was stated that the total amount spent by the assessee on the construction of a house was Rs. 6.92 lakhs of which she spent Rs. 2,85,600 in the assessment year 1984-85, and the balance Rs. 4,06,400 was spent in the previous year relevant to the assessment year 1985-86. In explaining the sources, the assessee had stated that Rs. 6 lakhs were received by her from Laxmi Chand Bagaji. The amount which was received in 1983 was shown in the balance-sheet as a liability. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise out of the order of the Tribunal passed in respect of the miscellaneous application: "1. Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified and correct in law in refusing to rectify its order even when it was specifically pointed out by the assessee that the issue pertaining to the source of construction of the property was never in dispute and the dispute before it was limited to the genuineness of the credits? 2. Whether, on the facts and in the circumstances of the case, was the Income-tax Appellate Tribunal justified and correct in law in not deleting an addition sustained by it of Rs. 6 lakhs received by the assessee as a loan from Laxmi Chand Bhagaji, Bombay, on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the aforesaid question is in the negative, whether the sum of Rs. 6 lakhs could then be treated as unexplained to be included in the income of the assessee for the instant assessment year?" According to him, the Tribunal proceeded on wrong premises and contrary to the stand taken by the assessee and the Revenue at the time of hearing of the appeal before it. This according to him constitutes a mistake which is rectifiable in terms of section 254(2) of the Act. Learned counsel for the Revenue on the other hand submitted that the issues now raised cannot by any stretch of imagination be treated as mistake apparent on the record warranting action under section 254(2) of the Act. Before we deal with the rival stands, it is necessary to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sited in the joint account of the assessee, it was pointed out that the conclusions were arrived at by referring to the first of the two named persons in the account and, therefore holding that the first named person was the owner of the bank account. As aforesaid the Tribunal came to hold that there was no mistake apparent on record and the application was therefore dismissed. A bare look at section 254(2) of the Act makes it clear that a "mistake apparent from the record" is rectifiable. In order to attract the application of section 254(2), a 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" mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is apparent on the face of the record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137. It is to be noted that the language used in Order 47, rule 1 of the Code of Civil Procedure, 1908 (in short "the CPC"), is different from the language used in section 254(2) of the Act. Power is given to various authorities to rectify any mistake "apparent from record". In the Civil Procedure Code, the words are "an error apparent on the face of the record". The two provisions do not mean the same thing. The power of the Tribunal in section 254(2) to rectify "any m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the assessee with reference to two decisions in Bishwanath Prasad and Sons v. CIT [1987] 163 ITR 715 (All) and CIT v. Ganesh Sizing Factory [1995] 211 ITR 355 (Raj) submitted that the question whether there was an error apparent on the face of the record is a question of law. We find on a bare reading of the aforesaid two decisions that they related to the jurisdiction of the Tribunal in the matter of rectification of an order under section 254(2) of the Act. On the facts of the present case, we find that there was no mistake apparent from the record which could be rectified under section 254(2) of the Act. The so called inaccuracies or wrong recording of facts as alleged are not patent mistakes which constitute the sine q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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