TMI Blog2018 (10) TMI 1889X X X X Extracts X X X X X X X X Extracts X X X X ..... of oversight it could not be considered or distinguished in the order while dismissing ground no. 2 of the appeal filed by the assessee - thus, there is mistake apparent from record , therefore, we recall our decision on ground no. 2 of the appeal in order dated 19.03.18 and direct the Registry to fix the matter for re-hearing on ground no. 2 and as such this ground of appeal will be heard afresh on merits. Application allowed. - MA No. 271/Mum/2018 (Arising out of ITA No. 817/Mum/2015 - - - Dated:- 3-10-2018 - Hon ble Shri G. S. Pannu, Accountant Member And Hon ble Shri Sandeep Gosain, Judicial Member For the Appellant : Shri Rajeev Khandelwal, A.R. For the Respondent : Shri T. A. Khan, D.R. ORDER Per Sand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquisition . The Authorised Representative pleaded that the indexed cost of acquisition as per Explanation (iii) means the cost of the asset as on the date such asset was acquired/allotted, (which is clear from the phrase the Cost Inflation Index for the first year in which the asset was held by the assessee ) (emphasis mine) irrespective of the date on which the payments are made, that is, the actual cost of acquisition of the asset ought to be considered for the purpose of indexation, and not the payments made as per the payment schedule. It was particularly stressed during the course of hearing that each installment payment is only a part of the cost of the asset, and not the cost per se. 2.1.2 Further, this is not for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (SC), it was held that Sub-section (2) of Section 254 thus covers two distinct situations: - (i) It enables the Tribunal at any time within four years from the date of the order to amend any order passed under sub-section (1) with a view to rectify any mistake apparent from the record; and (ii) It requires the Tribunal to make such amendment if the mistake is bought to its notice by the assessee or the Assessing Officer. Thus the Court concluded as under: - It is, of course, not easy to define or adequately describe what an error of law apparent on the face of the record means. What can be corrected by a writ has to be an error of law; but it must be such an error of law as can be regarded as one which is apparent on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened . 6. It was further held by the Court that non-consideration of a decision of the jurisdictional Court or of Supreme Court can be said to be a mistake apparent from record which can be rectified under Section 254(2) of the Act. 7. Apart from that we have also considered the judgement in the case of Honda Siel Power Products Ltd. Vrs. CIT (2007) 295 ITR 466 (SC) wherein it was held as under: - Appeal to Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered or distinguished in the order while dismissing ground no. 2 of the appeal filed by the assessee. 9. Therefore, while keeping in view the principles laid down by the Hon'ble Supreme Court in the aforementioned two judgements, we are of the view that there is mistake apparent from record , therefore, we recall our decision on ground no. 2 of the appeal in order dated 19.03.18 and direct the Registry to fix the matter for re-hearing on ground no. 2 and as such this ground of appeal will be heard afresh on merits. 10. Before parting we make it clear that we have not expressed any opinion in one way or the other and not stated anything on merits of the matter. Therefore the regular Bench of the Tribunal will hear groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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