TMI Blog1984 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) Smt. Pyaribai w/o Mithalal ... 30% share (3) Smt. Pushpabai w/o Abhayakumar ... 30% share (4) Shri Ashok Kumar s/o Mithalal ... 5% share The Income-tax Officer noticed that there was already in existence firm styled as M/s. Abhayakumar Jaswant Kumar, Indore. It was assessed by another Income-tax Officer at Indore. The partners and their shares are as under : (1) Shri Mithalal, in his individual capacity ... 35% share (2) Shri Chhaganlal, father of Shri Mithalal ... 10% share (3) Shri Abhayakumar s/o Mithalal ... 30% share (4) Shri Ashok Kumar s/o Mithalal ... 25% share The Income-tax Officer noticed the following peculiar features about these two entities: (1) The two entities are constituted by the members of the same family. They are related closely to each other, either as husband and wife, brothers or father and son. (2) The capital investment is also traceable to a common source. Mithalal brought in capital of Rs. 20,576.90 from Hindu undivided family funds, Shri Ashok Kumar introduced a capital of Rs. 12,486 by transfer from Mithalal Chhaganlal, Hindu undivided family, and a sum of Rs. 2,125.50 from M/s. Abhayakumar Jaswant Kumar. Smt. Pyaribai bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to be a sham and thus dismissed the appeal. Thereafter, the assessee filed Misc. Application under section 254(2) of the Income-tax Act, 1961, before the Tribunal for rectification on the ground that the Tribunal failed to consider the material placed on record about which submissions were also made. The Tribunal by its order passed on August 24, 1982, held asunder: " For the reasons discussed above, we are of the view that there are mistakes in our order. The same are apparent from the record. We have already held in preceding paras that section 254(2) of the Income-tax Act, 1961, specifically empowers the Tribunal to rectify any order passed by it. As discussed above, the Tribunal has inherent power to rectify a wrong committed by itself. In such cases, really speaking, the Tribunal will not be exercising the power of review. We have pointed out the circumstances under which we have committed a wrong or error in deciding the appeal. In our opinion, the mistakes committed are apparent from the record. In view of the aforesaid facts, we set aside our order and accordingly the order is set aside. The appeal shall be heard again and the same shall be discussed after hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain relevant facts and material which were on record and consequently when those mistakes were pointed out by moving an application for rectification under section 254(2) of the Income-tax Act, the Tribunal was satisfied and convinced that it had really committed mistakes in dismissing the appeal by not properly looking into the record as also the material produced by the assessee in this connection. He, therefore, submitted that the Tribunal itself having found that they had committed certain mistakes, this being purely a question of fact, the question proposed by the Revenue does not arise at all in this case, as it would always depend on the facts of each case in what manner and to what extent the rectification could be ordered whenever it is found that the Tribunal has committed some mistakes. He, therefore, submitted that there is no question of review as the question of rectification under the Income-tax Act cannot be viewed from the angle as mentioned in order 47, rule 1, CPC. He, therefore, submitted that, in the present case, the only question involved was whether the assessee was a genuine firm or not and when the mistakes committed by the Tribunal were pointed out, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Income.-tax Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. " A bare reading of this section would make it clear that the Tribunal has the power to rectify any mistake apparent from the record and amend any order passed by it under sub-section (1), and this mistake can be amended if it is brought to its notice by the assessee or by the Income-tax Officer, subject to the provision mentioned therein. Therefore, it is no doubt true that the Tribunal has not got any power to review its own order, but it can certainly correct its mistakes by rectifying the same, in case it is brought to its notice that the material which was already on record before deciding the appeal on merits was not considered by it. Therefore, what would be the effect of rectifying a mistake and thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the authorities of this court as also of the courts in England, that one of the grounds on which the jurisdiction of the High Court on certiorari may be invoked, is an error of law apparent on the face of the record and not every error either of law or fact, which can be corrected by a superior court, in exercise of its statutory powers as a court of appeal or revision. " This decision assumes that the scope of a writ in the nature of certiorari or as order or direction to set aside the order of an inferior Tribunal under article 226 of the Constitution is the same as that of a common law writ of certiorari in England: we do not express any opinion on this in this case. This decision practically accepts the opinion expressed by this court in Hari Vishnu Kamath's case [1955] 1 SCR 1104; AIR 1955 SC 233. The only addition it introduces is the antithesis it made between " error of law and error of fact " and " error of law apparent on the face of the record ". But the question still remains in each case whether an error is one of law or of fact and that falls to be decided on the facts of each case. Das Gupta J. makes yet another attempt to define the expression when he says in Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " Held, it is true that there must be a question of law arising out of the order of the Tribunal before a reference can be made, but it is not every question of law that is required to be referred by the Tribunal to the High Court. Where the answer to the question is self-evident or is concluded by a decision of the Supreme Court, it would be futile to make a reference and in such a case the Tribunal would be justified in refusing to refer the question to the High Court." Addl. CIT v. National Newsprint and Paper Mills Ltd. [1978] 114 ITR 398 (MP) (headnote) : " Held, as the answer to the question is self-evident, no useful purpose would be served by requiring the Tribunal to state a case." CIT v. Kelvin jute Co. Ltd. [1980] 126 ITR 679 (Cal) (headnote): " The amplitude of the expression 'any order' in section 254(2) of the Income-tax Act, 1961, includes a final order disposing of an appeal. If there is a mistake apparent from the record even though it is found in an order finally disposing of an appeal, the Tribunal would have the power to rectify it under section 254(2)." T. S. Rajam v. CED [1968] 69 ITR 342 (Mad) (headnote): " Though taxiing statutes are sometimes hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be rectified under section 35 of the Indian Income-tax Act." CIT v. K. N. Oil Industries [1983] 142 ITR 13 (MP) (headnote) : " The record of the assessment is not confined to the return. Section 154 of the Income-tax Act, 1961, which confers jurisdiction for rectifying a mistake enables the Income-tax Officer to assume jurisdiction when he finds any mistake apparent from the record. The word 'record', as used in section l 54, will include all material which forms part of the assessment proceedings and not only the return. If an assessee omits to claim the relief allowable to him under the provisions of the Income-tax Act, 1961, it could not be said that he is not entitled to get that relief. It is the duty of the Income-tax Officer and other officers administering the Act to inform the assessee that he is entitled to a particular relief if it is apparent that he is so entitled from the material available in the proceedings of assessment." CIT v. Chander Bhan Harbhajan Lal [1966] 60 ITR 188 (SC) (headnote) : " Where the question of law raised is not substantial and the answer to the question is self-evident, the High Court is not bound to require the Tribunal to refer the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not applicable in the case of section 35 of the Income-tax Act." Therefore, whether in a particular case, the order amounts to a review or rectification, to some extent, would depend on the facts of the case and considering the facts and circumstances of the case, it does not appear that the Tribunal has reviewed its order, but when pointed out, it has admitted its mistake. As held earlier, such mistakes have not to be strictly considered according to the provisions of Order 47, rule 1, Civil Procedure Code, but have got to be taken into consideration depending on the facts of each case which may vary as also the points involved because, out of some points raised, the Tribunal might think it fit to rectify its mistake regarding only one of those points raised or items disputed. Thus, in the present case, we are of the opinion that the Tribunal itself has found that it has committed certain mistakes in not considering the material which was already on record which has the effect of deciding the appeal on merits. In the present case, the effect of rectifying its mistake, no doubt, has resulted in setting aside the original order, but the only question involved in this case was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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