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TMI Blog1984 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above two judgments and also in view of the judgment of the Hon'ble Supreme Court in the case of Mathura Prasad vs. CIT (1966) 60 ITR 428 (SC), referred to at para 9 of the order of the Tribunal, the assessee became satisfied that the above sum spent for the purchase of loom hours was rightly treated by the Tribunal as capital expenditure and for that reason, the assessee accepted the order of the Tribunal dt. 14th April, 1975, i.e., the order by which the reference application under s. 256(1) was rejected. 4. It is further stated in the present miscellaneous application that after the service of the said order dt. 14th April, 1975, the assessee was informed that in view of a later judgment of the Hon'ble Supreme Court in the case of Empire Jute Co. Ltd. vs. CIT (1980) 17 CTR (SC) 113 : (1980) 124 ITR 1 (SC), The said sum of Rs.3,25,309 should have been allowed as Revenue expenditure. It is also the case of the assessee that the law laid down by the Hon'ble Supreme Court is the law of the land. 5. It is, therefore, submitted by the assessee that though no express power has been vested in the Tribunal so as to implement the law laid down by the Hon'ble Supreme Court in som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on by the assessee's ld. counsel in the present miscellaneous application. At the outset, it may be mentioned that s. 254(2) provides that the Tribunal may at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s(1), and shall make such amendment if the mistake is brought to its notice by the assessee or the ITO. From the plain reading of s. 254(2), it is very clear that the Tribunal can rectify any mistake which is apparent on record. From the brief narration of the facts and background of the case, as stated above, it can be seen that there was no mistake apparent from the record which would justify the Tribunal to Act, as prayed for, by the assessee in the present application. To repeat, the Tribunal following the decision in the case of Maheshwari Devi Jute Mills Ltd. and as well as the decision of the Hon'ble Calcutta High Court in the case of Empire Jute Co. Ltd. (1974) 97 ITR 581 (Cal), disallowed the claim of the assessee to the effect that expenditure incurred in the purchase of loom hours was not Revenue in character. In fact, as stated by the assessee in the miscel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no apparent mistake on record and that too after the limitation period of four years have already expired. 13. The otter aspect of the contention of the assessee is that by its later judgment, in the case of Empire Jute Co. Ltd. (1980) 17 CTR (SC) 113 : (1980) 124 ITR 1 (SC), the Hon'ble Supreme Court of India was of the view that the purchase of loom hours was of Revenue expenditure and, therefore, the claim of the as that in view of this later judgment, the expenditure incurred by the assessee amounted to Rs. 3,25,309, should now be allowed as Revenue expenditure. At the first instance, it may be noted here that the assessee accepted the order of the Tribunal dt. 14th April, 1975, rejecting its application for reference in respect of the above question under s. 256(1). In our view, the matter become final as far as the present assessee is concerned. In this connection, we may refer to the provisions of s. 254(4) of the IT Act which stipulates that the order of the Tribunal shall be final, when there is no reference under s. 256(1). 14. That apart, the decision as reported in (1980) 17 CTR (SC) 113 : (1980) 124 ITR 1 (SC) related to the case of another assessee. Moreover, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e patently invalid and wrong by virtue of the retrospective operation of the amendment and, therefore, when the application for rectification was made within the period of limitation prescribed under s. 254(2), it was held that the Tribunal had power to rectify under s. 254(2). In other words, the application for rectification and that too as a result of a retrospective amendment, would have to the made within the time limit. Similarly is the view of the Hon'ble High Court in the case of CIT vs. Kelvin Jute Co. Ltd. (1980) 17 CTR (Cal) 138 : (1980) 126 ITR 679 (Cal), in which it was held that the amplitude of the expression "any order" in s. 254(2), includes a final order disposing of an appeal. In the present case before us, final order disposing of the appeal by the assessee was rendered on 11th Oct., 1974. 16. The assessee while making this miscellaneous application relies on the decision of the Hon'ble Calcutta High Court in the case of Alipurduar Tea Co. We have gone through the facts of that case and we are of the opinion that the facts of the present case before us are distinguishable with thecae of Alipurduar Tea Co., in which the assessment under the Bengal Agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court has taken the same view in the case of T.S. Balaram, ITO vs. Volkart Bros. & Ors. (1971) 82 ITR 50 (SC), in which it was held, inter alia, that a mistake apparent on record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivable two opinions. As noted earlier, the assessee's ld. counsel submits that should there be any difficulty in conceding to assessee's present miscellaneous application, the matter may be placed before a larger Bench. We have carefully considered this part of the submissions of the assessee's ld. Counsel. The facts of the case as discussed earlier are quite clear. Similarly, the provisions of s. 254(2) also are quite clear and contain no ambiguity, keeping in mind the ratio of the decisions discussed by us above. In this view of the matter, we find no difficulty in disposing of the miscellaneous application of the assessee on the points dealt with by us above. 18. From whatever angle we may look at, we find that the present miscellaneous application of the assessee cannot be accepted in view of the background and facts of the case as d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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