Appeal Details
Counselvise Citation
[2018] 123 COUNSELVISE.COM (IT) 5676 (ITAT-CHENNAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
19-01-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2007-2008
Appeal Filed On
02-11-2017
Judgement Text
, , IN THE INCOME - TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M .P. NO S . 3 48 & 3 49 / CHNY /2017 [IN I.T. A. NO S . 2101 & 2484 / CHNY /20 1 6 ] ASSESSMENT YEAR : 2007 - 08 M/S. SUMERU SOFT P. LTD., NO. 50, CAPITAL PLACE, OUTH BOAG ROAD, T. NAGAR, CHENNAI 600 017. [PAN: AAECS2260F ] VS. THE INCOME TAX OFFICE R, CORPORATE W ARD 6 ( 4 ), CHENNAI . ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI R. SIVARAMAN , ADVOCATE / RESPONDENT BY : SHRI AR.V. SREENIVASAN , J CIT / DATE OF HEARING : 19 .0 1 .2018 / DATE OF P RONOUNCEMENT : 19 . 0 1 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION S , THE ASSESSEE SEEKS TO REC ALL THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN THE CROSS APPEAL S FILED BY THE ASSESSEE AS WELL AS REVENUE IN I.T.A. NO. 2 101 / CHNY /20 1 6 AN D I.T.A. NO.2484 /CHNY/201 6 VIDE ORDER DATED 0 8 .0 5 .201 7 . BY REFERRING TO THE AFFIDAVITS FILED IN SUPPORT OF THE PETITIONS, THE LD. COUNSEL HAS SUBMITTED THAT THERE IS MISTAKE APPARENT ON RECORD IN TH E CONSOLIDATED ORDER OF THE TRIBUNAL , M .P. NO S . 3 48 & 3 49 / CHNY/17 2 WHEREIN, IN THE CROSS APPEAL S FILED BY THE ASSESSEE AS WELL AS THE REVENUE , THE TRIBUNAL REMITTED THE MATTER BACK T O THE ASSESSING OFFICER TO RE - CALCULATE THE SALE CONSIDERATION AND TO COMPUTE CAPITAL GAINS BY HOLDING THAT THE ARRANGEMENT BETWEEN THE PETITIONER AND THE DEVELOPER WOULD AMOUNT TO A TRANSFER OF AN IMMOVABLE PROPERTY, WHICH IS A MISTAKE APPARENT ON RECORD SINCE THE TRIBUNAL FAILED TO NOTE THAT EVEN THOUGH THE PETITIONER HAD ENTERED INTO AN AGREEMENT FOR DEV ELOPMENT OF THE PROPERTY AND CERTAIN RIGHTS WERE ASSIGNED TO THE DEVELOPER, NO CONSTRUCTION HAS TAKEN PLACE AT THE SAID PROPERTY TILL DATE AND MOREOVER, THE POSSESSION OF THE PROPERTY WAS HANDED OVER TO THE DEVELOPER FOR THE LIMITED PURPOSE OF GETTING APPR OVALS FOR CONSTRUCTION AND NO TRANSFER OF OWNERSHIP HAD OCCURRED DURING THE IMPUGNED ASSESSMENT YEAR 2007 - 08 . 2. PER CONTRA, THE LD. DR S TRONGLY OBJECTS TO THE SUBMISSIONS OF THE LD. COUNSEL. THE LD. DR HAS SUBMITTED THAT AFTER CONSIDERING THE ENTIRE FA CTS, PROVISIONS AND CASE LAW, THE TRIBUNAL HAS GIVEN FAIR DECISION AND THE SAME CANNOT BE RECALLED . IN THE PETITION S , NO MISTAKE WAS POINTED OUT BY THE PETITION APPARENT ON RECORD AGAINST WHICH THE ORDER OF TRIBUNAL IS REQUIRED TO BE RECALLED AND IN CASE T HE POINT RAISED IN THE PETITION S OF THE ASSESSEE IS ACCEPTED, IT WOULD TANTAMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE. M .P. NO S . 3 48 & 3 49 / CHNY/17 3 3. WE HAVE HEARD BOTH SIDES AND PERUSED THE PETITION AND GONE THROUGH THE ORDER OF THE TRIBUNAL INCLUDING ORDERS OF AUTHORITIES BELOW . WITH REGARD TO BRINGING TO TAX THE LONG TERM CAPITAL GAINS BY APPLYING THE PROVISIONS OF SECTION 2(47)(V) OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT] AND W HILE REMITTING THE ISSUE BACK TO THE ASSESSING OFFICER TO RE - CALCULATE THE SALE CONSIDERATION AND TO COMPUTE CAPITAL GAINS BY HOLDING THAT THE ARRANGEMENT BETWEEN THE PETITIONER AND THE DEVELOPER WOULD AMOUNT TO A TRANSFER OF AN IMMOVABLE PROPERTY, THE TRIBUNAL OBSERVED AND HELD AS UNDER: 8. WE HAVE HEARD BOTH THE PARTIES A ND PERUSED THE MATERIAL AVAILABLE ON RECORD WITH REFERENCE TO THE CONTENTIONS OF THE ASSESSEE WITH REGARD NON - CHARGEABILITY OF CAPITAL GAINS IN RESPECT OF THE LAND. WE HAVE ALSO GONE THROUGH THE VARIOUS CASE LAW CITED BY THE PARTIES AND CONSIDERED THE ADDI TIONAL EVIDENCE FILED BY THE ASSESSEE. ACCORDING TO THE AUTHORISED REPRESENTATIVE, WHICH WAS NOT 'TRANSFERRED' BUT ONLY GIVEN FOR DEVELOPMENT. WE MAY REFER TO THE PROVISIONS OF SECTION 2(47)(V) WHICH READS AS FOLLOWS : - '(V) ANY TRANSACTION INVOLVING THE ALLOWING OF THE POSSESSION OF ANY IMMOVABLE PROPERTY TO BE TAKEN OR RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT, 1882 (4 OF 1882)' 8.1. THE IMPORTANCE OF THE WORD 'TRANSFER' IS DUE TO THE REASON THAT UNDER THE CHARGING SECTION, VIZ., SECTION 45, AND THE CAPITAL GAIN IS TAXABLE ON 'TRANSFER OF A CAPITAL ASSET'. PRECISELY, THIS SECTION PRESCRIBES THAT 'ANY PROFITS OR GAINS ARISING FROM THE TRANSFER OF A CAPITAL ASSET EFFECTED IN THE PR EVIOUS YEAR SHALL BE CHARGEABLE TO INCOME - TAX UNDER THE HEAD CAPITAL GAINS AND SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR IN WHICH THE TRANSFER TOOK PLACE'. 8.2 THUS, THE FUNDAMENTAL FEATURES WHICH DETERMINE THE TAXABILITY OF CAPITAL GAIN, ARE THAT THE GAIN OUGHT TO BE FROM THE TRANSFER OF A CAPITAL ASSET. THIS SECTION HAS A LARGE SCOPE OF ITS OPERATION DUE TO THE PRESENCE OF DEEMING PROVISION WHICH SAYS THAT THE GAIN SHALL BE THE DEEMED INCOME OF THAT PREVIOUS YEAR IN WHICH THE TRANSFER TOOK P LACE. THIS PHRASE CAN BE INTERPRETED IN THE MANNER THAT THE TOTAL PROFITS MAY ACTUALLY BE RECEIVED IN ANY OTHER YEAR, BUT FOR THE PURPOSES OF SECTION 45, THE GAIN SHALL BE THE DEEMED INCOME OF THE YEAR OF TRANSFER OF THE CAPITAL ASSET. IT SHALL NOT BE OUT OF CONTEXT, AT THIS M .P. NO S . 3 48 & 3 49 / CHNY/17 4 JUNCTURE, TO MENTION AN OBSERVATION OF THE HON'BLE AUTHORITY FOR ADVANCE RULINGS IN THE CASE OF JASBIR SINGH SARKARIA, IN RE [2007] 294 ITR 196 (AAR), THAT THE EXPRESSION USED IN SECTION 45 IS 'ARISING', WHICH CANNOT BE EQUATED WITH THE EXPRESSION 'RECEIVED' OR EVEN WITH THE EXPRESSION 'ACCRUED' AS BEING USED IN THE STATUTE. THE POINT WHICH DESERVES NOTICE IS THAT THE AMOUNT OR THE CONSIDERATION SETTLED MAY NOT BE FULLY RECEIVED OR MAY NOT TECHNICALLY ACCRUE BUT IF IT ARISES FROM THE AGR EEMENT IN QUESTION, THEN THE DEEMING PROVISIONS SHALL COME INTO OPERATION. ANOTHER POINT IS ALSO EQUALLY NOTICEABLE THAT BY THE PRESENCE OF THE DEEMING PROVISION, THE INCOME ON ACCOUNT OF ACCRUAL OF THE CAPITAL GAIN SHOULD BE CHARGED TO TAX IN THE SAME PRE VIOUS YEAR IN WHICH THE TRANSFER WAS EFFECTED OR DEEMED TO HAVE TAKEN PLACE. DUE TO THE PRESENCE OF THIS STATUTORY FICTION, THE ACTUAL YEAR IN WHICH THE ENTIRE SALE CONSIDERATION IS RECEIVED, IS BESIDE THE POINT BUT WHAT NEEDS TO BE JUDGED IS THE POINT OF TIME AT WHICH THE TRANSFER TOOK PLACE EITHER BY HANDING OVER OF THE POSSESSION OR BY ALLOWING THE ENTRY INTO THE PREMISES OR BY MAKING THE CONSTRUCTIVE PRESENCE OF THE VENDEE NEVERTHELESS DULY SUPPORTED BY A LEGAL DOCUMENT. 8.3 BUT THE ISSUE DOES NOT GET SETTLED ONLY BY THE INTERPRETATION OF SECTION 45 AND SECTION 2(47)(V) BECAUSE THE DEFINITION OF 'TRANSFER' DOES NOT MERELY PRESCRIBES ALLOWING OF POSSESSION BUT ALSO THAT IT MUST BE RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATURE REFERRED TO IN S ECTION 53A OF THE TRANSFER OF PROPERTY ACT. THEREFORE, IT IS FURTHER REQUISITE TO DEAL WITH THE RELEVANT SECTION CONTAINED IN THE TRANSFER OF PROPERTY ACT. THE TRANSFER OF PROPERTY ACT CONTAINS SECTION 53A UNDER THE HEADING 'PART PERFORMANCE' AND, FOR DECI DING THE CASE IN HAND, IT IS NECESSARY TO QUOTE THE IMPUGNED SECTION VERBATIM AS FOLLOWS : 'WHERE ANY PERSON CONTRACTS TO TRANSFER FOR CONSIDERATION ANY IMMOVABLE PROPERTY BY WRITING SIGNED BY HIM OR ON HIS BEHALF FROM WHICH THE TERMS NECESSARY TO CONST ITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAINTY, AND THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREADY IN POSSESSION, CONTINUES IN POSSESSION IN P ART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT, AND THE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT, THEN, NOTWITHSTANDING THAT THE CONTRACT, THOUGH REQUIRED TO BE REGISTERED, HAS NOT BEE N REGISTERED, OR, WHERE THERE IS AN INSTRUMENT OF TRANSFER, THAT THE TRANSFER HAS NOT BEEN COMPLETED IN THE MANNER PRESCRIBED THEREFOR BY THE LAW FOR THE TIME BEING IN FORCE, THE TRANS FEROR OR ANY PERSON CLAIMING UNDER HIM SHALL BE DEBARRED FROM ENFORCING AGAINST THE TRANSFEREE AND PERSONS CLAIMING UNDER HIM ANY RIGHT IN RESPECT OF THE PROPERTY OF WHICH THE TRANSFEREE HAS TAKEN OR CONTINUED IN POSSESSION, OTHER THAN A RIGHT EXPRESSLY PROVIDED BY THE TERMS OF THE CONTRACT : M .P. NO S . 3 48 & 3 49 / CHNY/17 5 PROVIDED THAT NOTHING IN THIS SE CTION SHALL AFFECT THE RIGHTS OF A TRANSFEREE FOR CONSIDERATION WHO HAS NO NOTICE OF THE CONTRACT OR OF THE PART PERFORMANCE THEREOF.' 8.4 THE DOCTRINE OF 'PART PERFORMANCE' IS UNDOUBTEDLY BASED UPON THE DOCTRINE OF EQUITY. IF ONE PARTY HAS PERFORMED HI S PART OF DUTY THEN EQUITY DEMANDS THAT THE OTHER PARTY SHALL ALSO PERFORM HIS PART OF THE OBLIGATION. IF ONE PARTY STOOD BY HIS WORDS THEN IT IS EXPECTED FROM THE OTHER PARTY TO ALSO STAND BY HIS PROMISE. NATURALLY AN INEQUITABLE CONDUCT OF ANY PERSON HAS NO SANCTION IN THE EYE OF LAW. 8.5 IN THE LIGHT OF THE INGREDIENTS OF THIS SECTION, WHICH HAS BEEN ARGUED FROM BOTH THE SIDES, NOW WE PROCEED TO EXAMINE THE FACTUAL MATRIX OF THE CASE IN HAND, HEREINBELOW : (A) STARTING WORDS OF SECTION 53A ARE 'WHERE A NY PERSON CONTRACTS' WHICH MEANS JUST THE EXISTENCE OF A CONTRACT. THE ASSESSEE IS THE 'PERSON' WHO HAS ENTERED INTO A CONTRACT WITH THE DEVELOPER VIDE AGREEMENT DATED 10TH SEPTEMBER, 2006. (B) THIS SECTION SAYS 'TO TRANSFER', WHICH MEANS THE SAID CONTRAC T IS IN RESPECT OF A TRANSFER AND NOT FOR ANY OTHER PURPOSE. THE TERM 'TRANSFER' IS TO BE READ ALONG WITH THE SECTION 45 AND SECTION 2(47)(V) OF THE INCOME - TAX ACT. IT IS PERTINENT TO CLARIFY THAT ONE MUST NOT FORGET TO IDENTIFY THE ISSUE OF CAPITAL GAIN W ITH THE TERM 'TRANSFER' AS DEFINED IN SECTION 54 OF THE TRANSFER OF PROPERTY ACT. AT THE COST OF ELABORATION, WE MAY LIKE TO ADD THAT IN THE PAST THERE WAS A LONG LINE OF PRONOUNCEMENTS; WHILE DECIDING INCOME - TAX CASES, THAT UNLESS AND UNTIL A SALE DEED IS EXECUTED AND THAT TOO IT IS REGIS TERED, TRANSFER CANNOT BE SAID TO HAVE BEEN EFFECTED. THE CONSEQUENCE OF THE SAID CATENA OF DECISIONS WAS THAT NO CAPITAL GAIN TAX WAS DIRECTED TO BE LEVIED SO LONG AS THE 'TRANSFER' HAS NOT TAKEN PLACE AS PER THE GENERAL LY ACCEPTED CONNOTATION OF THE TERM UNDER THE TRANSFER OF PROPERTY ACT. THE RESULTANT POSITION WAS THAT THE LEVY OF CAPITAL GAINS TAX THUS RESULTED IN MAJOR AMENDMENTS IN THE INCOME - TAX STATUTE. THE MAIN OBJECTIVE OF THOSE AMENDMENTS WAS TO ENACT THAT FOR THE PURPOSES OF CAPITAL GAINS, THE TRANS ACTION INVOLVING TRANSFER OF THE NATURE REFERRED ARE NOT REQUIRED TO BE REGIS TERED UNDER THE REGISTRATION ACT. SUCH ARRANGEMENT DOES NOT INCLUDE TRANSFER OF CERTAIN RIGHTS VESTING TO A PURCHASER ; HOWEVER SUCH 'TRA NSFER' DOES CONFER CERTAIN PRIVILEGES OF CONSTRUCTIVE OWNERSHIP WITH CONNECTED BUNDLE OF RIGHTS. INDEED IT IS A DEPARTURE FROM THE COMMONLY UNDERSTOOD MEANING OF THE DEFINITION 'TRANSFER' WHILE INTERPRETING THIS TERM FOR TAX PURPOSE. ON THE FACTS OF THIS C ASE, THE DEVELOPER HAS GOT BUNDLE OF RIGHTS AND THEREUPON ENTERED INTO THE PROPERTY. THEREAFTER, WE HAVE TO SEE WHAT HAS HAPPENED AND WHAT STEPS THE TRANSFEREE HAS M .P. NO S . 3 48 & 3 49 / CHNY/17 6 TAKEN TO DISCHARGE THE OBLIGATION ON HIS PART. IF TRANSFEREE HAS TAKEN ANY STEPS TO CONSTRUC T THE FLATS, UNDISPUTEDLY THEN, UNDER THE PROVISION OF THE INCOME - TAX ACT A 'TRANSFER' HAS DEFINITELY TAKEN PLACE. (C) THE EXISTENCE OF THE 'CONSIDERATION' IS THE ESSENCE OF THE CONTRACT. IN THIS CASE THE AMOUNT OF CONSIDERATION HAS TO BE PAID TO THE ASSE SSEE IN THE FORM OF CASH AS WELL AS IN KIND, I.E., THE FLATS TO BE CONSTRUCTED BY THE DEVELOPERS TO BE HANDED OVER TO THE OWNERS. (D) NEXT IS THE IMPORTANT PHRASE, I.E., 'TERMS NECESSARY TO CONSTITUTE THE TRANSFER CAN BE ASCERTAINED WITH REASONABLE CERTAI NTY'. ACCORDING TO US, IN THIS CASE, THE TERMS AND CONDITIONS OF THE CONTRACT WERE UNAMBIGUOUS AND CLEARLY SPOKE ABOUT THE RIGHTS AND DUTIES WITH CERTAINTY OF BOTH THE SIGNING PARTIES. WE ARE CONCERNED MAINLY WITH TWO CERTAINTIES ; ONE IS PASSING OF SUBSTA NTIAL CONSIDERATION AND THE SECOND IS PASSING OVER OF POSSES SION. AS FAR AS THE PAYMENT OF CONSIDERATION IS CONCERNED, WE HAVE ALREADY NOTICED THAT IT IS IN THE FORM OF BOTH CASH AS WELL AS KIND AND PAYMENT MADE TO THE ASSESSEE HAS BEEN BROUGHT ON RECORD BY THE LOWER AUTHORITIES AND THE SAME WAS EXAMINED AND CONSIDERED BY THE COMMISSIONER OF INCOME - TAX (APPEALS). THERE WAS A PAYMENT OF RS. 7,02,54,000/ - VIDE JOINT VENTURE AGREEMENT DATED 10.06.2006 AS INTEREST FREE DEPOSITS ON SIGNING THE AGREEMENT. (E) THE OTHER FACTOR WHICH GOVERNS THE HAPPENING OF TRANSFER IS THE HANDING OVER OF POSSESSION. THIS SECTION SAYS 'AND THE TRANSFEREE HAS, IN PART PERFORMANCE OF THE CONTRACT, TAKEN POSSESSION OF THE PROPERTY OR ANY PART THEREOF, OR THE TRANSFEREE, BEING ALREA DY IN POSSESSION CONTINUES IN POSSESSION IN PART PERFORMANCE OF THE CONTRACT AND HAS DONE SOME ACT IN FURTHERANCE OF THE CONTRACT'. RETENTION OF POSSESSION IS ONE KIND OF THE FACET OF PART PERFORMANCE OF THE CONTRACT. THE AGREEMENT IN QUESTION CAN BE SAID TO BE A DISTINCT TRANSACTION THAT HAS GIVEN RISE TO THE EVENT OF ALLOWING THE CONTRACTOR TO ENTER INTO THE PROPERTY. WHAT IS CONTEMPLATED BY SECTION 2(47)(V) IS A TRANSACTION WHICH HAS DIRECT AND IMMEDIATE BEARING ON ALLOWING THE POSSESSION TO BE TAKEN IN PART PERFORMANCE. IT IS AT THAT POINT OF TIME THAT THE DEEMED TRANSFER TAKES PLACE. ACCORDING TO US THE POSSESSION AS CONTEMPLATED IN CLAUSE (V) NEED NOT NECESSARILY BE SOLE AND EXCLUSIVE POSSESSION, SO LONG AS THE TRANSFEREE IS ENABLED TO EXERCISE GENERAL CONTROL OVER THE PROPERTY AND TO MAKE USE OF IT FOR THE INTENDED PURPOSE. THE MERE FACT THAT THE ASSESSEE OWNER HAS ALSO THE RIGHT TO ENTER THE PROPERTY TO OVERSEE THE DEVELOPMENT WORK OR TO ENSURE PERFORMANCE OF THE TERMS OF THE AGREEMENT, DID NOT RESTRI CT THE RIGHTS OF THE DEVELOPER OR DID NOT INTRODUCE ANY INCOMPATIBILITY. IN A SITUATION LIKE THIS WHEN THERE IS A CONCURRENT POSSESSION OF BOTH THE PARTIES, EVEN THEN CLAUSE (V) HAS ITS FULL ROLE TO PLAY. THERE IS NO M .P. NO S . 3 48 & 3 49 / CHNY/17 7 WARRANT TO POSTPONE THE OPERATION OF CL AUSE (V) TO THAT POINT OF TIME WHEN THE CONCURRENT POSSESSION WOULD BECOME EXCLUSIVE POSSESSION OF THE DEVELOPER. ANY OTHER INTERPRETATION, I.E., POSSESSION MEANS EXCLUSIVE POSSESSION, SHALL DEFEAT THE PURPOSE OF AMENDMENT. THE POSSIBILITY OF STAG GERING O F PAYMENT LINKED WITH POSSESSION IS RULED OUT BY THIS AMENDMENT SO THAT THE TAXABILITY OF GAIN MAY NOT BE SHIFTED TO AN UNCERTAIN DISTANT DATE. WE HAVE NO HESITATION IN SAYING THAT EVEN IF SOME PART OF CONSIDERATION REMAINS TO BE PAID, THE TRANSACTION SHAL L NOT AFFECT THE LIABILITY OF THE CAPITAL GAINS TAX SO AS TO POSTPONE THE SAME INDEFINITELY. WHAT IS MEANT IN CLAUSE (V) IS THE 'TRANSFER' WHICH INVOLVES ALLOWING THE POSSESSION SO AS TO ALLOW DEVELOPER TO UNDERTAKE DEVELOPMENT WORK ON THE SITE. IT IS A GE NERAL CONTROL OVER THE PROPERTY IN PART PERFORMANCE OF THE CONTRACT. THE DATE OF THAT TRANSACTION DETERMINES THE DATE OF TRANSFER. TO OUR UNDERSTANDING OF THE LANGUAGE OF THE ACT, IT IS ENOUGH IF THE TRANSFEREE HAS, BY VIRTUE OF THE IMPUGNED TRANSACTION, A RIGHT TO ENTER UPON AND EXERCISE THE ACT OF POSSESSION EFFECTIVELY, THEN SUCH AN ACT AMOUNTS TO LEGAL POSSESSION OVER THE PROPERTY. (F) THE LAST NOTICEABLE INGREDIENT IS, 'THE TRANSFEREE HAS PERFORMED OR IS WILLING TO PERFORM HIS PART OF THE CONTRACT'. T O ASCERTAIN THE EXISTENCE OF WILLINGNESS ON THE PART OF THE TRANSFEREE ONE MUST NOT PUT STOP AT ONE EVENT BUT THE WILLINGNESS IS TO BE JUDGED BY THE SERIES OF ACTIONS OF THE TRANSFEREE. THE TRANSFEREES SURVEY THE LAND AND TO ATTRACT PURCHASER PUT UP HOARDI NGS PLUS SALES OFFICE AND CARRY OUT SITE DEVELOPMENT WORK. LANDSCAPING, SALES PROMOTION, EXECUTION OF CONSTRUCTION AND COMPLETION OF PROJECT ARE ALL INCI DENTAL TO DEMONSTRATE THE WILLINGNESS OF THE TRANSFEREE. ON ONE HAND, THE JOINT DEVELOPMENT AGREEMENT GRANTS BUNDLE OF POSSESSOR RIGHTS TO THE DEVELOPER SIMULTANEOUSLY AND ON THE OTHER HAND TRANSFEREE'S GESTURE OF PAYMENT OF CONSIDERATION COUPLED WITH DEVELOPMENT WORK CAN BE SAID TO BE A POSITIVE STEP TOWARDS THE WILLINGNESS TO FULFIL THE COMMITMENT. FACTS OF THIS CASE THUS SUGGEST THAT THE DEVELOPER HAD NEVER INTENDED TO WALK - OUT OF THE PROJECT. (G) FROM THE DEVELOPMENT AGREEMENT, IT IS MORE THAN CLEAR THAT IT WAS AN AGREEMENT FOR CONSTRUCTION OF RESIDENTIAL/COMMERCIAL FLATS ON THE PROPERTY OWNED BY THE ASSESSEE. IN LIEU OF THE RIGHT GIVEN TO THE DEVELOPER THEREUNDER, THE ASSESSEE WAS TO RECEIVE 27 PER CENT. OF THE CONSTRUCTED AREA OF ALL THE FLOORS. FURTHER, EVEN THE VACANT AND PEACEFUL POSSESSION OF THE PROPERTY HAD BEEN DELIVERED TO THE ASSESSEE VIDE C LAUSE NO.18 TO 18.4 OF THIS JV AGREEMENT. UNDER THE CIRCUMSTANCES, THERE WAS INDEED AN EXCHANGE OF PROPERTY WHICH AMOUNTED TO A TRANSFER WITHIN THE MEANING OF SECTION 2(47)(V) OF THE ACT AND THE GAIN RESULTING FROM SUCH TRANSFER WAS INDEED TAXABLE IN THE Y EAR IN WHICH THE DEVELOPMENT AGREEMENT GIVING VACANT AND M .P. NO S . 3 48 & 3 49 / CHNY/17 8 PEACEFUL POSSESSION OF THE PROPERTY TO THE DEVELOPER WAS ENTERED INTO BY THE ASSESSEE, AS HELD BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CHATURBHUJ DWARKADAS KAPADIA V. CIT [2003] 260 ITR 491 ( BOM) AND IN THE SEVERAL DECISIONS OF THE JURISDICTIONAL INCOME - TAX APPELLATE TRIBUNAL, HYDERABAD, INCLUDING THAT IN THE CASE OF DR. MAYA SHENOY, SECUNDERABAD IN 124 TTJ 692. SINCE THE DEVELOPMENT AGREEMENT IN THE ASSESSEE'S CASE HAS BEEN EXECUTED ON 10TH S EPTEMBER, 2006 AND THE VACANT AND PEACEFUL POSSESSION ALSO WAS GIVEN IN ON THE SAME DATE ITSELF, SUCH GAINS WERE INDEED TO BE TAXED IN THE FINANCIAL YEAR 2006 - 07, RELEVANT TO THE ASSESSMENT YEAR 2007 - 08. (H) AS REGARDS THE CONTENTION OF THE ASSESSEE'S RE PRESENTATIVE THAT THE SAID DECISIONS ARE NOT APPLICABLE TO THE ASSESSEE'S CASE, IT IS CLEAR THAT NO REASONS FOR SUCH VIEW COULD BE EVER FURNISHED BY HIM. SIMILARLY, THERE IS NO MERIT IN THE CONTENTION THAT THE DEVELOPMENT AGREEMENT COULD NOT HAVE COME INTO FORCE UNLESS AND UNTIL THE JV AGREEMENT HAS BEEN CANCELLED. AS DISCUSSED IN THE ASSESSMENT ORDER, THE ASSESSEE HAD INDEED BEEN PAID RS. 7,02,54,000/ - ON SIGNING THE JV AGREEMENT. UNDER THE CIRCUMSTANCES, IT CANNOT BE DISPUTED THAT THERE WAS A PROMISE TO P AY WHICH HAS NOT BEEN SHOWN AS HAVING REMAINED UNFULFILLED. IT IS AN ESTABLISHED JUDICIAL PROPOSITION THAT THE CONSIDERATION MAY BE FUTURISTIC ALSO, AS HELD BY THE SUPREME COURT IN THE CASE JUGALKISHORE SARAF V. RAW COTTON CO. LTD. REPORTED IN AIR 1955 SC 376. ACCORDINGLY, THERE IS NO MERIT IN SUCH CONTENTION OF THE REPRESENTATIVE OF THE ASSESSEE. AS REGARDS THE ARGUMENT THAT THE AGREEMENT UNDER REFERENCE HAD BEEN EXECUTED ONLY FOR THE PURPOSE OF GETTING PERMISSIONS FROM VARIOUS DEPARTMENTS FOR CONSTRUCTION , THE VERY TERMS OF THE AGREEMENT BELIE ANY SUCH CLAIM AS THE DEVELOPMENT AGREEMENT GIVES ABSOLUTE RIGHTS TO THE BUILDERS, INCLUDING POSSESSION, DULY SPECIFIED THE CONSIDERATION TO BE RECEIVED BY THE ASSESSEE ON SUCH EXCHANGE. AS REGARDS THE CASE LAW CITED BY THE AUTHORISED REPRESENTATIVE, EVIDENTLY THOSE STAND ON A SET OF DIFFERENT FACTS AND HENCE CANNOT BE CONSIDERED IN THE FACTS OF THE PRESENT CASE. 8.6 TO SUM UP THE OWNERS HAVE ENTERED INTO AN AGREEMENT FOR DEVELOPMENT OF THE PROPERTY AND CERTAIN RIGH TS WERE ASSIGNED TO THE DEVELOPER WHO IN TURN HAD MADE THE SUBSTANTIAL PAYMENT AND CONSEQUENTLY ENTERED INTO THE PROPERTY AND THEREAFTER THE TRANSFEREE HAS TAKEN STEPS IN RELATION TO CONSTRUCTION OF THE BUILDING, THEN IT IS TO BE CONSIDERED AS TRANSFER UND ER SECTION 2(47)(V) OF THE INCOME - TAX ACT. THE FACT THAT THE LEGAL OWNERSHIP CONTINUED WITH THE OWNERS TO BE TRANSFERRED TO THE DEVELOPER AT A FUTURE DISTANT DATE REALLY DOES NOT AFFECT THE APPLICABILITY OF SECTION 2(47)(V) AS PER THE REASONS ASSIGNED HERE INABOVE. THE TRANSFEREE WAS UNDISPUTEDLY WILLING TO PERFORM ITS PART OF THE CONTRACT, IN THIS CIRCUMSTANCE WE HAVE TO HOLD THAT THERE IS TRANSFER UNDER SECTION 2(47)(V) OF THE ACT IN A.Y 2007 - 08. THUS, THE POSSESSION AND CONTROL OF THE PROPERTY IS ALREADY VESTED WITH THE M .P. NO S . 3 48 & 3 49 / CHNY/17 9 TRANSFEREE AND THE IMPUGNED DEVELOPMENT AGREEMENT HAS NOT BEEN DULY CANCELLED AND IT IS STILL IN OPERATION, IT HAS TO BE DECIDED THAT THERE IS A TRANSFER UNDER SECTION 2(47)(V) OF THE ACT IN F.Y.2006 - 07 RELEVANT TO AY 2007 - 08. 9. WE HAVE TO SEE THE REAL INTENTION OF THE PARTIES. AS PER THE WELL KNOWN CANNON OF CONSTRUCTION OF DOCUMENT, THE INTENTION GENERALLY PREVAILS OVER THE WORD USED AND THAT SUCH A CONSTRUCTION PLACED ON THE WORD IN A DEED AS IS MOST AGREEABLE TO THE INTENTION OF THE PARTIES. THERE ARE GROUNDS APPEARING FROM THE FACE OF THE INSTRUMENT AFFORDING PROOF OF THE REAL INTENTION OF THE PARTIES, THEN THAT INTENTION WOULD PREVAIL AGAINST THE OBVIOUS AND ORDINARY MEANING OF THE WORDS USED. ENTERING INTO THE PROPERTY AND HANDING OVER OF THE POSSESSION WAS INSTANTANEOUS THUS ENTIRE CONSPECTUS OF THE CASE HAS ATTRACTED THE PROVISION OF SECTION 45 OF THE ACT ON FULFILMENT OF CONDITIONS LAID DOWN IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT. IN OUR OPINION, THE REAL INTENTION OF THE PARTIES HEREIN IS TO BE SEEN. 9.1 ACCORDINGLY, WE DECIDE THE ABOVE ISSUE RELATING TO TRANSFER OF PROPERTY UNDER SECTION 2(47)(V) OF THE INCOME - TAX ACT IN FAVOUR OF THE DEPARTMENT. WE ALSO HOLD THAT CLAUSE (47) OF SECTION 2 WAS AMENDED BY THE FINANCE ACT , 1987 WITH EFFECT FROM APRIL 1, 1988 BY INSERTING NEW SUB - CLAUSES (V) AND (VI) THEREUNDER. THESE TWO NEW SUB - CLAUSES PROVIDE THAT 'TRANSFER' INCLUDES (I) ANY TRANSACTION WHICH ALLOWS POSSESSION TO BE RETAINED IN PART PERFORMANCE OF A CONTRACT OF THE NATUR E REFERRED TO IN SECTION 53A OF THE TRANSFER OF PROPERTY ACT ; AND (II) ANY TRANSACTION ENTERED INTO IN ANY MANNER WHICH HAS THE EFFECT OF TRANSFERRING OR ENABLING THE ENJOYMENT OF ANY IMMOVABLE PROPERTY. THEREFORE, UNDER THESE TWO SUB - CLAUSES, THE CAPITAL GAIN WOULD BE TAXABLE IN THE YEAR IN WHICH SUCH TRANSACTIONS ARE ENTERED INTO EVEN IF THE TRANSFER OF THE IMMOVABLE PROPERTY IS NOT EFFECTIVE OR COMPLETE UNDER THE GENERAL LAW. THE ASSESSEE ENTERED INTO AN AGREEMENT WITH THE BUILDER/DEVELOPER FOR DEVELOPM ENT OF THE IMPUGNED LAND AND CONSTRUCTION OF FLATS THEREON. FURTHER, THE ASSESSEE ACTED ON THE IMPUGNED AGREEMENT BY ACCEPTING FROM THE BUILDER/DEVELOPER PAYMENTS IN THE FINANCIAL YEAR 2006 - 07. IN VIEW OF THE FACTS AND CIRCUMSTANCES DISCUSSED ABOVE, ALL T HE CONDITIONS OF SUB - CLAUSE (V) OF SECTION 2(47) ARE SATISFIED IN THIS CASE AND THEREFORE, IT HAS TO BE INFERRED THAT A 'TRANSFER' DID TAKE PLACE WITHIN THE MEANING OF SECTION 2(47)(V). THE ARGUMENT THAT THE DEEDS IN RESPECT OF THE SALE OF FLATS WERE NOT REGISTERED/EXECUTED IS NOT A RELEVANT CONSIDERATION SO FAR AS PROVISIONS OF SUB - CLAUSE (V) OF SECTION 2(47) ARE CONCERNED. THE COMPLETION OF 'TRANSFER' OF AN IMMOVABLE PROPERTY AS PER THE GENERAL LAW IS NOT A REQUIREMENT FOR THE APPLICABILITY OF THE PROVIS IONS OF SUB - CLAUSE (V) OF SECTION 2(47). THUS, THIS GROUND IS DISMISSED. 10. NOW THE QUESTION BEFORE US IS WITH REGARD TO QUANTIFICATION OF CAPITAL GAINS. THE AO CONSIDERED THE AMOUNT RECEIVED BY THE ASSESSEE `7,02,54,000/ - AS TOWARDS 4.5% OF THE CONSTR UCTED AREA AND THEREBY DETERMINED THE SALES M .P. NO S . 3 48 & 3 49 / CHNY/17 10 CONSIDERATION AT . 42,15,24,000/ - . IN OUR OPINION, THIS METHODOLOGY FOLLOWED BY THE AO IS NOT CORRECT. AS PER CLAUSE 12.4 OF THE JV AGREEMENT, THE ASSESSEE SHALL BE SOLD BACK TO THE DEVELOPER 4.5% AREAS OF PROJECT WITH PROPORTIONATE UNDIVIDED SHARE OF LAND AT . 1,000/ - PER SQ. FEET AND THE CONSIDERATION AMOUNT FOR THE SAID 4.5% OF THE AREA OF THE ASSESSEE SHALL BE PAID BY THE DEVELOPER BY WAY OF ADJUSTMENT OUT OF THE INTEREST FREE DEPOSIT PAID TO THE ASSESSEE BY DEVELOPER AT . 7,02,54,000/ - AS PER CLAUSE NO.10.1 OF JVA. THU S, IT DOES NOT MEAN THAT THE COST OF 4.5% OF THE AREA OF THE PROJECT WAS VALUED AT . 7,02,54,000/ - . ON THIS ISSUE, THE CIT(APPEALS) OBSERVED THAT THE VALUE OF SHARE OF CONSIDERATION OF 27% OF SALEABLE OR SUPER - BUILT AREA INCLUDING PARKING PLACES OF THE PR OJECT ALLOTTED TO THE ASSESSEE ON TRANSFER OF UNDIVIDED SHARE OF 73% OF LAND SURRENDERED IN FAVOUR OF DEVELOPER TO BE VALUED ON THE BASIS OF GUIDELINE VALUE OF SAID UNDIVIDED SHARE OF LAND ALLOTTED TO THE DEVELOPER. IN OUR CONSIDERED OPINION, THIS IS ALSO NOT APPROPRIATE METHOD TO DETERMINE THE CONSIDERATION RECEIVABLE BY THE ASSESSEE ON ACCOUNT OF JVA DATED 10.09.2006. IN OUR CONSIDERED OPINION, COST OF CONSTRUCTION OF BUILT - UP AREA OF 27% OF SALEABLE OR SUPER - BUILT AREA INCLUDING PARKING PLACES OF THE P ROJECT ALLOTTED TO THE ASSESSEE TO BE ASCERTAINED BY THE ASSESSING OFFICER AFTER EXAMINING THE RELEVANT RECORD OF COST OF CONSTRUCTION INCURRED OR TO BE INCURRED BY THE DEVELOPER. ACCORDINGLY, THIS SAID COST OF CONSTRUCTION WOULD CONSTITUTE AS SALE CONSID ERATION RECEIVED BY THE ASSESSEE IN KIND AND THAT SHOULD BE BROUGHT TO TAX IN THE ASSESSMENT YEAR 2007 - 08. IF NECESSARY, HE COULD TAKE ASSISTANCE OF DVO OR ANY EXPERTS SO AS TO ARRIVE THE COST OF CONSTRUCTION OF 27% OF CONSTRUCTED AREA, WHICH WOULD BE TRAN SFERRED TO THE ASSESSEE. THUS, THE ISSUE IS REMITTED TO THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF DETERMINING THE SALE CONSIDERATION AND TO COMPUTE THE CAPITAL GAINS ACCORDINGLY AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSES S EE. THE ISSUE RELATIN G TO THE COMPUTATION OF CAPITAL GAINS IN BOTH THE APPEALS IS REMITTED TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION. 4. FROM THE ABOVE, IT IS CLEAR THAT THE TRIBUNAL HAS CONSIDERED THE FACTS AT LENGTH, RELEVANT PROVISIONS AS WELL AS VARIOUS ACT S WHIL E CONCLUDING THE ORDER. W E FIND NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL WARRANTING RECALLING AND RECONSIDERING THE ISSUES BOTH IN THE APPEAL S FILED BY THE ASSESSEE AS WELL AS REVENUE SINCE THE SAME AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, W HICH IS NOT PERMISSIBLE. THE SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT HAS BEEN EXAMINED BY THE HON BLE JURISDICTIONAL HIGH COURT AND GAVE ITS FINDINGS ELABORATELY IN THE CASE OF EXPRESS NEWSPAPERS LIMITED M .P. NO S . 3 48 & 3 49 / CHNY/17 11 V. DCIT [2010] (320 ITR 12 MAD) AND RELEVANT P ORTION OF THE DECISION IS EXTRACTED AS UNDER: THE SCOPE AND AMPLITUDE OF SECTION 254(2) FIND THE ANALOGOUS PROVISION 12 OF SECTION 154 OF THE ACT HAVE BEEN CONSIDERED BY A CATENA OF DECISIONS OF THE APEX COURT AND OTHER HIGH COURTS. THE UNIFORM OPINION OF THE COURTS OF SUPERIOR JURISDICTION IS THAT A PATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED U NDER SECTION 254(2). 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 RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. THE ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO C OURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. SECTION 254(2) SPECIFICALLY EMPOWERS THE TR IBUNAL TO AMEND AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF AN ORDER, ANY ORDER PASSED BY IT UNDER SECTION 254(1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTU OR ON AN APPLICATION. IN ORDER TO ATTRACT THE APPLICATION OF SE CTION 254(2), THE MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE EXPRESSION 'MISTAKE APPARENT FROM THE RECORD' CONTAINED IN SECTIONS 154 AND 254(2) HAS WIDER CONTENT THAN THE EXPRESSION 'ERROR APPARENT ON THE FACE OF THE RECORD OCCU RRING IN ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE. THE RESTRICTIONS ON THE POWER OF REVIEW UNDER ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE DO NOT HOLD GOOD IN THE CASES OF SECTIONS 254(2) AND 154 OF THE ACT. SECTION 254(2) DOES NOT CONFER POWE R ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. UNDER THE GARB OF RECTIFICATION OF MISTAKE IT IS NOT POSSIBLE FOR A PARTY TO TAKE FURTHER CHANCE OF REARGUING THE APPEAL ALREADY DECIDED. WHAT CAN BE RECTIFIED UNDER SECTION 254(2) IS A MISTAKE WHICH IS APPARE NT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE THEN IT CANNOT BE SAID TO BE A MISTAKE APPARENT ON THE RECORD. WHEN PREJUDICE RESULTING FROM AN ORDER IS ATTRIBUTABLE TO THE T RIBUNAL'S MISTAKE, ERROR OR OMISSION, IT IS ITS BOUNDEN DUTY TO SET IT RIGHT. THE PURPOSE BEHIND THE ENACTMENT OF SECTION 254(2) OF THE ACT TO AMEND ANY ORDER PASSED UNDER SUB - SECTION (1), IF ANY MISTAKE APPARENT FROM THE RECORD IS BROUGHT TO THE NOTICE OF THE TRIBUNAL, IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, 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 POWER OF THE TRIBUNAL. IF PREJUDICE HAS RESULTED TO THE PARTY, WHICH PRE JUDICE IS ATTRIBUTABLE TO THE TRIBUNAL S MISTAKE, ERROR OR OMISSION M .P. NO S . 3 48 & 3 49 / CHNY/17 12 AND WHICH ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. RECTI FICATION CAN BE MADE ONLY WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM THE RECORD. THE RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW C ANNOT BE DEALT WITH AS A MISTAKE APPARENT FROM THE RECORD. NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT MANIFEST OR SELF - EVIDENT AND REQUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT. WHERE WITHOUT ANY ELABORATE ARGUMENT ONE COULD POINT TO THE ERROR AND SAY HERE IS A SUBSTANTIAL POINT OF LAW WHICH STARES ONE IN THE FACE, AND THERE COULD REASONABLY BE NO TWO OPINIONS ENTERTAINED ABOUT IT, IS A CLEAR CASE OF ERROR APPARENT ON THE FACE OF THE RECORD. VIDE ASST. CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC), HONDA SIEL POWER PRODUCTS LTD. V. CIT [2007] 295 ITR 466 (SC), HARI VISHNU KAMATH V. AHMAD ISHAQUE, AIR 1955 SC 233; [1955] 1 SCR 1104, CIT V. KESHRI METAL PVT. LTD. (1999] 237 ITR 165 (SC), DEVA METAL PO WDERS P. LTD. V. COMMISSIONER, TRADE TAX [2007] 10 VST 751 (SC) ; [2008] 2 SCC439, CIT V. HERO CYCLES PVT. LTD. [1997] 228 ITR 463 (SC), SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA. TIRU MALE, AIR 1960 SC 137; [1960] 1 SCR 890, THUNGABHADRA I NDUSTRIES LTD. V. GOVERNMENT OF ANDHRA PRADESH REP. BY THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, AIR 1964 SC: 1372, BATUK K. VIYAS V. SURAT BOROUGH MUNICIPALITY, ILR 1953 BORN 191,MRS. K. T. M. S. UMMA SALMA V.CIT [1983] 144 ITR 890 (MAD), KIL KOTAGIRI TEA AND COFFEE ESTATES CO. LTD. V. ITAT [1988]174 ITR 579 (KER), CITV. R. CHELLADURAI [1979] 118 ITR 108 (MAD), STATE OF TAMIL NADU V. THAKOREBHAI AND BROTHERS[1983] 52 STC 104 (MAD); JAINARAIN JEEVRAJ V. CIT [L980] 121 ITR 358 (RAJ), CIT V. VARDHMAN SPINN ING [1997] 226 ITR 296 (P&H), BATA INDIA LTD. V. DEPUTY CIT(L996] 217 ITR 871 (CAL) AND CIT V PRAHLAD RAI TODI [2001] 251 ITR 833 (GAU - HATI). FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRI BUNAL'S POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS 'MISTAKE APPARENT ? MISTAKE IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR I NACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. APPARENT MEANS VISI BLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS PLAIN, OPEN TO VIEW, EVIDENT, APPEARS, APP4ARING AS REAL AND TRUE, CONSPICUOUS, MANIFEST, SEEMING. THE PLAN MEANING OF THE WORD APPAR ENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. IF SUCH A MISTAKE APPARENT ON THE FACE OF RECORD IS BROUGHT O THE NOTICE, SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER SECTION 25 4(1). AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. M .P. NO S . 3 48 & 3 49 / CHNY/17 13 WHAT IS MISTAKE APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE, AND BECOME MISTAKE APPARENT ON T HE FACE OF THE RECORD IS RATHER DIFFICULT TO DEFINE PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE RENDER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTAKE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD. I N VIEW OF THE RATIO OF THE DECISION AS CITED AND EXTRACTED ABOVE, WE FIND THAT THERE IS NO MISTAKE APPARENT ON RECORD TO REVISE THE ORDER OF THE TRIBUNAL DATED 0 8 .0 5 .201 7 AND BOTH THE MISCELLANEOUS PETITION S FILED BY THE ASSESSEE ARE DISMISSED. 5 . IN THE RESULT, BOTH THE MP S FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN CO URT ON THE 19 TH JANUARY, 201 8 AT CHENNAI. SD/ - SD/ - ( ABRAHAM P. GEORGE ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 19 .0 1 . 201 8 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.
