M/s Saralaya Srinivasaiah Sripathy (HUF) , Bangalore V. The Income Tax Officer, ward-2(2)(1), Bangalore

MA 353/BANG/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8323 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARUPPUSWAMY S R
• Assessee Lawyers: SRINIVASAN V
• Keywords: Unexplained cash credit

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH SMC BEFORE SHRI N.V VASUDEVAN, VICE PRESIDENT MP NOS.353 & 354/BANG/2018 [IN ITA NO.733/BANG/2018] ASSESSMENT YEAR : 2013-14 & 2014-15 SRI SARALAYA SRINIVASAIAH SRIPATHY [HUF] NO.45, CENTRAL STREET, KUMARAPARK WEST, BENGALURU. PAN AADHS 6662 K . VS. THE INCOME-TAX OFFICER, WARD-2(2)(1), BENGALURU. APPELLANT RESPONDENT APPELLANT BY SHRI SRINIVASAN V, ADVOCATE RESPONDENT BY SHRI KARUPPUSWAMY S.R, ADDL. CIT DATE OF HEARING 21.12.2018 DATE OF PRONOUNCEMENT 31.12.2018 O R D E R PER SHRI N.V VASUDEVAN, VICE PRESIDENT : THESE ARE MISC. APPLICATIONS FILED BY THE AS SESSEE U/S.254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR RECTIFICATION OF CERTAIN APP ARENT ERRORS IN THE ORDER OF THE TRIBUNAL DATED 31/5/2018 PASSED IN THE AFORESAID AP PEALS. 2. THE ASSESSEE HAD FILED THE AFORESAID APPEALS BE ING ITA NO.733 & 734/BANG/2018 AGAINST THE ORDERS CIT [APPEALS]-2, BANGALORE IN IT A NO. 41/CIT[A]-2/16-17 DATED 22/01/2018, FOR AY 2013-14 AND ITA NO.304/CIT(A)-2/ 16-17 DATED 22.01.2018 FOR AY 2014-15. THE APPEALS SO INSTITUTED WERE DISPOSED BY A COMMON ORDER IN ITA NOS. 733 & 734/BANG/2018 DATED 31/05/2018 FOR THE ASSESSMENT YEARS 2013-14 AND 2014-15. IT HAS BEEN CONTENDED BY THE ASSESSEE IN THESE M.P.S T HAT THE HON'BLE BENCH WHILE M.P NOS.353 & 35 4/B/18 2 DISPOSING OFF THE APPEAL FOR THE ASSESSMENT YEAR 20 13-14 [IN ITA NO.734/ BANG /2018] ALONG WITH THE APPEAL FOR THE ASSESSMENT YEAR 2014- 15 [IN ITA NO. 734/ BANG /2018], HAS OBSERVED IN THE COMMON ORDER DATED 31/05/2018 T HAT THE GROUNDS URGED FOR BOTH THE ASSESSMENT YEARS 2013-14 AND 2014-15 ARE COMMON WIT H REGARD TO THE EXTENT OF AGRICULTURAL INCOME TREATED AS NON-AGRICULTURAL INC OME. THEREAFTER, THE GROUNDS RAISED BY THE PETITIONER IN THE APPEAL MEMORANDUM FOR THE ASS ESSMENT YEAR 2014-15 HAVE BEEN REPRODUCED. IT HAS FURTHER BEEN CONTENDED THAT THE GROUNDS RAISED FOR THE ASSESSMENT YEARS 2013-14 AND 2014-15 ARE DIFFERENT. IN AY 201 3-14, THE GROUNDS OF CHALLENGED BY THE ASSESSEE WAS WITH REGARD TO THE ACTION OF THE R EVENUE AUTHORITIES IN INCREASING THE RETURNED INCOME BY TREATING RS.7,92,554 AGRICULTURA L INCOME DECLARED BY THE ASSESSEE AS NON-AGRICULTURAL INCOME AS OPPOSED TO LAW, EQUITY, PROBABILITY AND CIRCUMSTANCES OF THE CASE. IT IS THE PLEA OF THE ASSESSEE THAT IN THE AP PEAL FOR AY 2013-14 THE REVENUE AUTHORITIES HAVE IGNORED THE FACT THAT THE ASSESSEE HAD NO ACTIVITY, OTHER THAN AGRICULTURE AND WITHOUT ANY VALID BASIS WRONGLY CHA RACTERIZED A PART OF AGRICULTURAL INCOME AS NON-AGRICULTURAL INCOME, SUBJECT TO TAX A ND THAT THE REVENUE AUTHORITIES HAVE FAILED TO APPRECIATE THE FACT THAT INCOME FROM AGRI CULTURE IS OUTSIDE THE PURVIEW OF CHARGEABILITY OF SECTION 4 OF THE INCOME TAX ACT, 1 961 AND HAVE ERRED IN ADDING A PART OF AGRICULTURAL INCOME AS PART OF TAXABLE INCOME. I N AY 2013-14, THE ASSESSEE HAD DECLARED AGRICULTURAL INCOME OF RS.26.75 LAKHS DERI VED FROM 2 DIFFERENT COFFEE ESTATES VIZ., [1] SRI RAMA ESTATE, WHERE THE PETITIONER IS CULTIVATING 22.88 ACRES WITH INTERCROPPING OF PEPPER ET [2] KRISHNA ESTATE, WHER E THE ASSESSEE WAS A CO-OWNER HAVING SHARE IN 13.82 GUNTAS. IN COURSE OF THE AS SESSMENT PROCEEDINGS, THE ASSESSING OFFICER AFTER EXAMINING THE STATEMENT OF AGRICULTUR AL INCOME FILED IN RESPECT OF BOTH THESE ESTATES, DISALLOWED A SUM OF RS.7,92,554/- OU T OF AGRICULTURAL INCOME OF SRI RAMA ESTATE BY APPLYING GP RATIO SHOWN BY THE PETITIONER IN THE CASE OF SRI KRISHNA ESTATE. IT IS THIS RE- COMPUTATION OF THE AGRICULTURAL INCOME THAT THE ASSESSEE HAS CHALLENGED BEFORE THE LEARNED CIT[A] AND BEFORE THE HON'BLE BE NCH. 3. AS FAR AS AY 2014-15 IS CONCERNED, THE FACTS WE RE DIFFERENT. THE ASSESSING OFFICER HAD MADE AN ADDITION OF RS.27,50,000/- AS UNEXPLAIN ED CREDIT U/S.68 OF THE ACT, BEING M.P NOS.353 & 35 4/B/18 3 THE DIFFERENCE BETWEEN THE AGRICULTURAL INCOME DECL ARED INCOME IN THE RETURN OF INCOME OF RS.35,00,000/- AND REVISED FIGURE OF AGRICULTURA L INCOME OF RS.7,50,000/- REPORTED BY THE ASSESSEE IN COURSE OF THE ASSESSMENT PROCEEDING S. IN AY 2014-15, THE ASSESSEE HAD CHALLENGED THE ADDITION ON A DIFFERENT GROUND THAT THERE WAS AN ERRONEOUS AMOUNT SHOWN IN THE RETURN OF INCOME, WHICH WAS ONLY FOR AGGREGA TION PURPOSES AND THAT THERE WAS NO ADDITION REQUIRED TO BE MADE SINCE THE ASSESSEE HAD NOT CLAIMED THE HIGHER AGRICULTURAL INCOME SHOWN IN THE RETURN OF INCOME AS ANY SOURCE IN THE BOOKS OF ACCOUNTS AND NO INVESTMENT OR OUTGOINGS WERE EXPLAINED WITH REFEREN CE TO THE SAID AGRICULTURAL INCOME SHOWN BY THE ASSESSEE. 4. IT HAS BEEN POINTED OUT IN THESE MPS THAT THE T RIBUNAL IN ITS COMMON ORDER HAS DEALT WITH THE GROUNDS RAISED BY THE ASSESSEE IN AY 2014- 15 AS A COMMON GROUND FOR BOTH AY 2013-14 & 2014-15 WHICH IS NOT CORRECT. IT HAS BEEN CONTENDED THAT ON THE ABOVE INCORRECT ASSUMPTION OF FACTS, THE TRIBUNAL HAS CON CLUDED IN PARA [7] OF THE COMMON ORDER DATED 31/05/2018 AS FOLLOWS: '7. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOW ER AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, I AM OF THE VIEW THAT T HE AD HAS MADE THE ADDITIONS ON THE BASIS OF THE ADMITTED AGRICULTURAL INCOME BY THE ASSESSEE. WHEN THE ASSESSEE ITSELF HAS COME FORWARD BEFORE THE AD THROUGH THE LETTER AND CONTENDED THAT AGRICULTURAL INCOME DECLARED IN THE RETURN OF INCOME WAS NOT PROPER AND CORRECT INC OME WAS DECLARED IN THE LETTER. IN THIS SITUATION I AM OF THE VIEW THAT THE AD HAS RIGHTLY MADE THE ADDITION OF THE DIFFERENCE IN THE AGRICULT URAL INCOME SHOWN AND ACCEPTED BY THE AD TO THE RETURN OF INCOME. I T HEREFORE FIND NO INFIRMITY IN THE ORDER OF THE CIT (APPEALS). ACCORD INGLY, I CONFIRM THE SAME'. 5. IT HAS FURTHER BEEN CONTENDED THAT THE AFORESAI D OBSERVATION OF THE HON'BLE BENCH IN PARA [7] OF THE COMMON ORDER DATED 31/05/2018 ARE N OT RELEVANT FOR THE ASSESSMENT YEAR 2013-14 AND THUS, THE OBSERVATIONS OF THE HON'BLE B ENCH THAT THE ISSUE INVOLVED IN BOTH THE APPEALS FOR THE ASSESSMENT YEARS 2013-14 AND 20 14-15 ARE COMMON IS ERRONEOUS. IT HAS BEEN FURTHER CONTENDED THAT ALTHOUGH THE ISSUE IN BOTH THE APPEALS FOR THE ASSESSMENT YEAR 2013-14 AND 2014-15 RELATES TO THE ADDITION MA DE IN RESPECT OF THE AGRICULTURAL M.P NOS.353 & 35 4/B/18 4 INCOME, THE DISALLOWANCE OR ADDITION HAS BEEN MADE FOR THE ASSESSMENT YEARS 2013-14 AND 2014-15 ON ENTIRELY DIFFERENT GROUNDS AND THERE FORE, NOT ONLY THE BACKGROUND FACTS BUT ALSO, THE GRIEVANCES OF THE ASSESSEE IN THESE 2 ASSESSMENT YEARS ARE TOTALLY DIFFERENT. IT HAS BEEN CONTENDED THAT THE TRIBUNAL HAS NOT ADJ UDICATED THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2013-14 AND HAS ALSO NOT ADVERTED T O THE FACTS THAT ARE RELEVANT FOR THE ASSESSMENT YEAR 2013-14 AND INSTEAD HAS ONLY CONSID ERED THE FACTS THAT RELATE TO THE ASSESSMENT YEAR 2014-15. HENCE, IT HAS BEEN PRAYED THAT THE COMMON ORDER DATED 31/05/2018 PASSED BY THE HON'BLE BENCH REQUIRES TO BE RECTIFIED IN AS MUCH AS, THE ISSUE INVOLVED IN THE APPEAL FOR THE ASSESSMENT YEAR 2013 -14 HAVE NOT BEEN DISPOSED OFF AT ALL AND THE FAILURE TO DISPOSE OFF THE GROUNDS AND ISSU ES RAISED CONSTITUTES A MISTAKE APPARENT ON THE FACE OF THE RECORDS WARRANTING RECT IFICATION. 6. I HAVE HEARD THE SUBMISSIONS OF THE LD COUNSEL F OR THE ASSESSEE WHO REITERATED THE STAND OF THE ASSESSEE AS CONTAINED IN THE MISC. AP PLICATIONS. THE LD DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF THE REC ORD CALLING FOR INFERENCE U/S 254(2) OF THE ACT. 7. I HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIV AL SUBMISSIONS AS FAR AS THE APPEAL FOR ASST. YEAR 2013-14 IS CONCERNED VIZ. IN ITA NO. 733 /BANG/2018, THE ISSUE INVOLVED IN THE APPEAL WAS WHETHER THE CIT(A) WAS JUSTIFIED IN CONFIRMING THE ORDER OF THE AO WHEREBY THE AO BY APPLYING THE G.P RATE OF SRI KRIS HNA ESTATE CAME TO THE CONCLUSION THAT THE AGRICULTURAL INCOME DECLARED BY SRI RAM ES TATE WAS EXCESSIVE AND WAS THEREBY REDUCED THE AGRICULTURAL INCOME DECLARED BY THE ASS ESSEE BY RS.7,92,554/-. THE ISSUE IN ASST. YEAR 2014-15 WAS THAT ASSESSEE ORIGINALLY FI LED RETURN OF INCOME DECLARING AGRICULTURAL INCOME AT RS.35 LAKHS AND IN REVISED C OMPUTATION ADMITTED AGRICULTURAL INCOME ONLY FOR RS.7.50,000/-. THE AO ADDED A SUM OF RS.27,50,000/- MADE THE DIFFERENCE BETWEEN THE AGRICULTURAL INCOME DECLARED IN THE RETURN OF INCOME AND AGRICULTURAL INCOME DECLARED IN THE REVISED COMPUTA TION OF TOTAL INCOME FILED BY THE ASSESSEE IN THE COURSE OF ASST. PROCEEDINGS. THE ISSUES INVOLVED IN BOTH THE APPEALS HAVE TO BE EXAMINED ON DIFFERENT PARAMETERS. I HOW EVER FIND THAT THE TRIBUNAL HAS M.P NOS.353 & 35 4/B/18 5 NARRATED THE FACTS FOR ASST. YEAR 2014-15 AND HAS PROCEEDED TO GIVE A CONCLUSION THAT THE AO HAS TO MAKE AN ADDITION TAKING INTO CONSIDERATIO N AGRICULTURAL INCOME AS ADMITTED BY THE ASSESSEE AND, THEREFORE, THERE CAN BE NO GRIEVA NCE TO THE ASSESSEE. I AM OF THE VIEW THAT SINCE THE ISSUES INVOLVED IN ASST. YEAR 2013-1 4 HAS NOT BEEN EXAMINED ON THE BASIS ON WHICH ADDITION WAS MADE FOR THAT AY, THE ORDER O F THE TRIBUNAL IN SO FAR AS IT RELATES TO ASST. YEAR 2013-14 SHOULD BE RECALLED. THE REGI STRY IS DIRECTED TO FIX THIS APPEAL IN DUE COURSE AFTER NOTICE TO THE PARTIES. ACCORDINGL Y MP NO.353/BANG/2018 IN ITA NO.733/BANG/2018 IS ALLOWED. 8. AS FAR AS MP NO.354/BANG/2018 IS CONCERNE D, THE SAME IS AGAINST THE ORDER DATED 31.5.2018 PASSED IN ITA NO.734/BANG/2018 RELATING T O AY 2014-15. THE CONTENTION OF THE ASSESSEE IN SO FAR AS THIS MP IS CONCERNED IS T HAT EVEN ASSUMING THE FACTS AS STATED IN THE ORDER OF THE TRIBUNAL IS CORRECT FROM THE VERY FACT THAT THE AGRICULTURAL INCOME DECLARED IN THE ORIGINAL RETURN OF INCOME AT 35 LAK HS WAS REVISED INCOME AND REVISED COMPUTATION OF INCOME OF RS.7.5 LAKHS, THERE CANNOT BE AN ADDITION TO THE TOTAL INCOME OF THE ASSESSEE OF THE DIFFERENCE. THE PLEA OF THE ASSESSEE IS THAT IT IS NOT ONLY IN A CASE WHERE AGRICULTURAL INCOME IS CLAIMED AS A SOURCE FO R EXPLAINING ANY INVESTMENTS OR FOR ANY OTHER MATTER THAT THE ADDITION CAN BE MADE WHEN THE AGRICULTURAL INCOME IS DISBELIEVED. ACCORDING TO THE LD COUNSEL FOR THE A SSESSEE, IN THE PRESENT CASE, NO SUCH CLAIM WAS MADE BY THE ASSESSEE AND, THEREFORE, THE ADDITION MADE BY THE REVENUE AUTHORITIES OUGHT TO HAVE BEEN DELETED. HE ALSO SU BMITTED THAT IN THE COURSE OF HEARING A BRIEF SYNOPSIS OF THE CASE WAS FILED IN WHICH THERE WAS A SUBMISSION THAT WHEN THERE IS NO INCOME OTHER THAN AGRICULTURAL INCOME, CLASSIFY ING THE SAME AS NON AGRICULTURAL INCOME AND TAXING THE SAME IS NOT AS PER LAW. IT W AS SUBMITTED BY HIM THAT A MATERIAL CONTENTION WHICH HAS BEARING ON THE CONCLUSIONS IN THE APPEAL AND WHICH IS NOT CONSIDERED BY THE TRIBUNAL GIVES RISE TO MISTAKE AP PARENT ON THE FACE OF THE RECORD AND SHOULD BE RECTIFIED U/S.254(2) OF THE ACT. THE LEA RNED DR RELIED ON THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE APP ARENT ON THE FACE OF THE RECORD. M.P NOS.353 & 35 4/B/18 6 9. I HAVE CONSIDERED THE RIVAL SUBMISSIONS . I FIND FROM THE BRIEF SYNOPSIS FILED IN THE COURSE OF HEARING BY THE LEARNED COUNSEL FOR TH E ASSESSEE THAT A CONTENTION WAS TAKEN THAT THE AO IS WRONG IN INVOKING THE PROVISIONS OF SEC.68 OF THE ACT AS THERE IS NO BOOKS OF ACCOUNTS AND THERE IS NO UNEXPLAINED CREDITS IN THE BOOKS OF ACCOUNT OF THE ASSESSEE AND THAT THE ASSESSEE HAS NO OTHER FINANCIAL ASSET LIKE MUTUAL FUND, EQUITY SHARES, BONDS ETC., OTHER THAN FIXED DEPOSITS AND THAT WHEN THERE IS NO INCOME, OTHER THAN AGRICULTURAL INCOME CLASSYING THE SAME AS NON AGRICULTURE INCOME AND TAXING THE SAME IS NOT AS PER LAW. THIS MATERIAL FACT BROUGHT TO THE NOTICE OF T HE TRIBUNAL IN THE WRITTEN SYNOPSIS FILED AT THE TIME OF HEARING HAS NOT BEEN TAKEN NOTE OF N OR DEALT WITH BY THE TRIBUNAL IN ITS ORDER. THIS MATERIAL CONTENTION, IF CONSIDERED, WI LL HAVE A BEARING ON THE ULTIMATE CONCLUSION OF THE TRIBUNAL. IT IS SETTLED LAW THAT WHERE A MATERIAL FACT BROUGHT TO THE NOTICE OF THE TRIBUNAL HAS BEEN LOST SIGHT OF, THE TRIBUNAL HAS THE POWER TO RECTIFY THE MISTAKE SO COMMITTED; PROVIDED THE MATERIAL FACT HA S AN IMPORTANT BEARING ON THE ULTIMATE DECISION. WHERE THE TRIBUNAL HAS OVERLOOK ED THE RELEVANT MATERIAL ON RECORD, THERE WOULD BE AN ERROR APPARENT FROM RECORD WHICH CAN BE RECTIFIED BY SETTING ASIDE THE ORDER FOR FRESH CONSIDERATION. IN THE DECISION OF T HE HONOURABLE DELHI HIGH COURT IN THE CASE OF KARAN & CO. V. INCOME TAX APPELLATE TRIBUNA L. 2001-(169)-CTR -0361 DEL, THE SCOPE OF POWERS U/S.254(2) HAS BEEN HELD TO BE AS FOLLOWS: A BARE LOOK TO S. 254(2) OF THE ACT MAKES IT CLEAR THAT A 'MISTAKE APPARENT FROM THE RECORD', IS RECTIFIABLE. IN ORDER TO ATTRACT TH E APPLICATION OF S. 254(2), A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE R ECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTAKE' MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR : A F AULT, A MISUNDERSTANDING, A MISCONCEPTION. 'APPARENT' MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS, PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UN DER S. 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN S. 254(2) MAKES I T CLEAR THAT ONLY AMENDMENT TO THE ORDER PASSED UNDER S. 254(1) IS PERMISSIBLE WHE N IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. IN OUR VIEW AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. WHERE AN ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER S. 254(2) IS NOT CONFINED TO CLERIC AL OR ARITHMETICAL MISTAKES. ON M.P NOS.353 & 35 4/B/18 7 THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR P ROOF. AS OBSERVED BY THE APEX COURT IN MASTER CONSTRUCTION CO. (P) LTD. VS. STATE OF ORISSA (1966) 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECOR D SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTION OF FACT OF LAW. A SIMILAR VIEW WAS ALSO EXPRESSED IN SATYAN ARAYAN LAXMINARAYAN HEDGE VS. MALLIKARJUN BHAVANAPPA TIRUMALE, AIR 1960 SC 13 7. IT IS TO BE NOTED THAT THE LANGUAGE USED IN O. 47, R. 1 OF THE CPC, 1908, IS D IFFERENT FROM THE LANGUAGE USED IN S. 254(2) OF THE ACT. POWER IS GIVEN TO VARIOUS AUTHORITIES TO RECTIFY ANY MISTAKE 'APPARENT FROM RECORD'. IN THE CPC, THE WORDS ARE ' AN ERROR APPARENT ON THE FACE OF THE RECORD'. THE TWO PROVISIONS DO NOT MEAN THE SAME THING. THE POWER OF THE TRIBUNAL IN S. 254(2) TO RECTIFY 'ANY MISTAKE APPAR ENT FROM THE RECORD' IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF 'AN ERROR APPARENT ON THE FACE OF THE RECORD'. [SEE T. S. BALARAM, ITO VS. VOLKART BROS. (1971) 82 ITR 50 (SC) : TC 53R.16 5]. MISTAKE IS AN ORDINARY WORD, BUT IN TAXATION LAWS, IT HAS A SPECIAL SIGNIF ICANCE. IT IS NOT AN ARITHMETICAL OR CLERICAL ERROR ALONE THAT COMES WITHIN ITS PURVIEW. IT COMPREHENDS ERRORS WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, ARE DISCERNED. THE WORD 'MISTAKE' IS INHERENTLY INDEFIN ITE IN SCOPE, AS WHAT MAY BE A MISTAKE FOR ONE MAY NOT BE ONE FOR ANOTHER. IT IS M OSTLY SUBJECTIVE AND THE DIVIDING LINE IN BORDER AREAS IS THIN AND INDISCERN IBLE. IT IS SOMETHING WHICH A DULY AND JUDICIOUSLY INSTRUCTED MIND CAN FIND OUT FROM T HE RECORD. IN ORDER TO ATTRACT THE POWER TO RECTIFY UNDER S. 254(2) IT IS NOT SUFFICIE NT IF THERE IS MERELY A MISTAKE IN THE ORDERS SOUGHT TO BE RECTIFIED. THE MISTAKE TO B E RECTIFIED MUST BE ONE APPARENT FROM THE RECORD. A DECISION ON A DEBATABLE POINT OF LAW OR DISPUTED QUESTION OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEA RS TO BE SO EX FACIE AND IT IS INCAPABLE OF ARGUMENT OR DEBATE. IT, THEREFORE, FOL LOWS THAT A DECISION ON A DEBATABLE POINT OF LAW OR FACT OR FAILURE TO APPLY THE LAW TO A SET OF FACTS WHICH REMAINS TO BE INVESTIGATED CANNOT BE CORRECTED BY W AY OF RECTIFICATION. THIS POSITION WAS HIGHLIGHTED BY US IN SMT. BALJEET JOLL Y VS. CIT (2000) 164 CTR (DEL) 37 : (2001) 250 ITR 113 (DEL). 10. AS CAN BE SEEN FROM THE OBSERVATION OF THE HON OURABLE DELHI HIGH COURT, THE MISTAKE APPARENT ON THE FACE OF THE RECORD IN TAXAT ION LAWS IS NOT MERELY AN ARITHMETICAL OR CLERICAL ERROR ALONE. IT ALSO COMPREHENDS ERROR S, WHICH, AFTER A JUDICIOUS PROBE INTO THE RECORD FROM WHICH IT IS SUPPOSED TO EMANATE, AR E DISCERNED. THE DIVIDING LINE IN THIS REGARD IS THIN AND INDISCERNIBLE. I AM SATISFIED T HAT IN THE PRESENT CASE INTEREST OF JUSTICE WOULD SUFFER, IF THE ABOVE CONTENTION IS NOT CONSID ERED. I AM THEREFORE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL, IN SO FAR AS IT RELATES TO AY 2014-15, ALSO SUFFERS FROM A MISTAKE APPARENT ON THE FACE OF THE ORDER AND REQUI RES TO BE RECALLED AND FIXED FOR M.P NOS.353 & 35 4/B/18 8 HEARING AFRESH. THE REGISTRY IS DIRECTED TO FIX THIS APPEAL IN DUE COURSE AFTER NOTICE TO THE PARTIES. ACCORDINGLY MP NO.353/BANG/2018 IN IT A NO.733/BANG/2018 IS ALLOWED. 11. IN THE RESULT, BOTH THE MPS ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST DECEMBER, 2018 . SD/- (N.V V ASUDEVAN) JUDI CIAL MEMBER BANGALORE DATED : 31/12/2018 VMS COPY TO :1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER ASST. REGI STRAR, ITAT, BANGALORE M.P NOS.353 & 35 4/B/18 9 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR. P. S... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT.. 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SECTION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..