TMI Blog2019 (4) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME COURT OF INDIA]. The Supreme Court pointed out that mistake means to take or understand wrongly or inaccurately or to make an error in interpreting and apparent means visible; capable of being seen; obvious; plain. It has, therefore, been observed by the Supreme Court that a mistake which can be rectified is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. Whether non-consideration of a judgment relevant to the issue for determination which was also placed before Bench of the Tribunal, can be said to be a mistake apparent from the record so as to be rectified under Section 35C(2) of the Act? - Held that:- This issue was examined by the Supreme Court in Asstt. Commr., Income Tax, Rajkot vs Saurashtra Kutch Stock Exchange Ltd., [2008 (9) TMI 11 - SUPREME COURT]. The Supreme Court held that non-consideration of a decision of a High Court or the Supreme Court can be said to be a mistake apparent from the record , which mistake can be rectified. It was pointed out that the error apparent from the record should be so manifest and clear that no Court would permit it to remain on record. It should be pertinent and sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs. Commissioner of Income Tax, Delhi reported in 2008 (9) S.T.R. 117 (S.C.). Learned counsel for the Applicant has also specially stated that the other grounds taken in the Application are not being pressed. 3. Shri R.K. Mishra, learned Authorized Representative of the Department has, however, opposed the application and has submitted that there is no error apparent from the record and so the Application filed by the Appellant deserves to be rejected. It is his submission that it is not necessary for the Tribunal to discuss all the arguments made during the course of hearing of the Appeal and since the Application filed for rectification of the mistake deals with the merit of the case, it would amount to review of the Order, which is not permissible in law and in support of his submissions learned representative has placed reliance upon a decision of the Supreme Court in Sant Lal Gupta Vs. Modern Co-operative Group Housing Society Ltd. reported in 2010 (262) E.L.T. 6 (S.C.). Learned representative also submitted that the Final Order takes into consideration all the relevant issues and the matter sought to be contended in the Application is a debatable issue. 4. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court also pointed out that a mistake capable of being rectified is not confined to a clerical or arithmetical mistake as it has a different connotation in taxation laws and is mostly subjective. The dividing line is thin and indiscernible. It is something which a judiciously instructed mind can find out from the record in order to attract the power to rectify. However, a decision on a debatable point of law or fact which remains to be investigated cannot be corrected by rectification. Paragraph 11 of the judgment is reproduced below: 11. Mistake is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word mistake is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 22, it is not sufficient if there is merely a mistake in the order sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion of the judgment is reproduced below: - In this connection, learned consultant relies on the decision of the Apex Court in W.P.I.L. Ltd. v. CCE, Meerut [ 2005 (181) E.L.T. 359 (S.C.)], wherein an omission in Notification No. 46/94-C.E. was found to have been made good through insertion of entry 4(a) therein by the amending Notification (No. 95/94-C.E.). The entry so inserted in the exemption notification provided nil rate of duty for certain parts of power-driven pumps. The benefit of this provision was given to the assessee by the apex Court after taking the view that insertion of the above entry in Notification No. 46/94-C.E. through the amending Notification viz. No. 95/94-C.E. was made to clarify the position, and therefore the benefit of the amendment should be given to the assessee for the intervening period [1-3-94 to 25-4-94]. Their lordships took this view after noting that exemption from payment of duty was available in respect of parts of PD pumps under both predecessor and successor notifications with reference to Notification No. 46/94-C.E. ibid. We have come across a comparable factual situation in the instant case also. That a provision similar to Sl. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent on the face of the record and can be corrected while exercising certiorari jurisdiction. An error cannot be said to be apparent on the face of the record if one has to travel beyond the record to see whether the judgment is correct or not. An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record. 40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a mistake apparent from the record ? In our opinion, both the Tribunal and the High Court were right in holding that such a mistake can be said to be a mistake apparent from the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10-9-2003 allowing the Rectification Application has given a finding that Samtel Color Ltd. (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. Rule of precedent is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice results from an order attributable to the Tribunal s mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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