TMI Blog2016 (2) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... Though the assessee and his brother received the amount from builder but since beginning both the brother set up their different claim in respect of amount received under TDR agreement for the purpose of assessment. The case of assessee was considered by CIT(A) on which conceivably two opinion are available. Since Ld. CIT(A) has taken one of the possible views, his order cannot said to suffer from mistake apparent from record. CIT(A) while exercising the power u/s. 154 of the Act are ignored the principle and basic scope of rectification of order as discussed in paras 5 to 8 supra. Hence, the order dated 20.07.2010 passed by CIT(A) is not sustainable under the scrutiny of law and the same is set-aside. - ITA No.6717/Mum/2010 - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are not to be charged as income from other sources, as the same is capital receipt and the amount received by the assessee against TDR/FSI right are not chargeable to tax. However, in the case of brother of assessee the same was treated as capital gain receipt. 3. The assessee objected about the rectification of order dated 31.03.2010 and argued that there was no error apparent from the record and argued that assessee objected to the initiation of rectification proceeding and submitted that there was no mistake in the order passed by the CIT(A) in the case of assessee and the mistake, if any, was in the order passed in the case of Mr. Bharat R. Patel (brother of assessee), the assessee s representative further argued that relief cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into that question.......an error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on debatable point of law is not a mistake apparent from the record....... 6. Further, the Hon ble Apex Court in Master Construction Co. (P.) Ltd. v. State of Orissa [(1966) 17 STC 360, 363], expressed the view that an error which is apparent on the fact 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. 7. Further, the Hon ble Apex Court in Satynarayan Laxminarayan Hedge vs. Mallikarjun Bhavanappa Thirumala, AIR 1960 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under the capital gain tax. 11. We have perused the order of CIT(A) in case of Bharat R. Patel and of assessee. Shri Bharat R. Patel who had claimed the sale of development right as a LTCG which was denied to him by the AO and treated the same as income from other sources, however, the same was allowed by CIT(A) in its order dated 30.03.2010. The assessee claimed the amount received against TDR/FSI as a capital receipt which is not chargeable to capital tax. However, the AO treated the same as income from other sources by concluding that it is not a transfer falling within the provision of section 45 of I.T. Act. 12. Though the assessee and his brother received the amount from builder but since beginning both the brother set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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