Case Law Details
RELEVANT PARAGRAPH
10. From the various judgments of the Supreme Court above referred to and other High Courts, it is clear that the Tribunal’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 inaccurately; 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 visible, capable of being seen, easily seen, obvious plain, open to view, evident, appears, appearing as real and true, conspicuous, manifest, seeming. The plain meaning of the word “apparent” 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 to the notice, Section 254(2) empowers the Tribunal to amend the order passed under Section 254(1). Amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. 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 the 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.
11. Having in mind the enunciation of the legal principle about the scope and amplitude of Section 254(2) of the Act, let us consider the facts of the present case. The rectification petition has been filed as if the original order of the Tribunal contains certain mistakes of fact. The first one is regarding the loss in potato business. It is the case of the Department that the Tribunal in paragraph No.26 of the order has stated that the borrowals of Express Newspapers from Traders and Services and the borrowals of Traders & Services from various creditors had not been questioned by the Department. This assumption of the Tribunal was not correct in view of the various correspondence; that the Tribunal relied on the interim decree passed in the Civil suit filed by the petitioner in Calcutta High Court for damages from the cold storages and further relied on the admission made before the trial Magistrate by the Director of the Cold Storage in a case filed by the Department against the petitioner, that it had cheated Express. The Tribunal before relying upon them did not give an opportunity to the Department to examine the evidence produced first time before the Tribunal, which factum was much disputed by the petitioner by contending that the Tribunal made available to the Department the paper books containing those materials for its perusal and use and that no objection was raised by the Department before the Tribunal.
12. The other mistake of fact pointed out by the Department in the rectification application is in respect of transaction in share dealings. According to the Department, the Tribunal proceeded on the assumption that the Department had not questioned the genuineness of the transaction of the petitioner with bankers and other share brokers. The assumption is not correct because the assessing officer has given a finding in his assessment order that the payments and receipts are interspersed in such a way that it is only Rs.20 to Rs.30 lakhs which is being rotated though the total purchases are of the order of Rs.1.81 Crores. It is the further submission of the Department that the other reasons given by the Tribunal that the Bankers have acted as custodian or agent of the petitioner was also not correct in view of the letter dated 8.1.1985 of the Manager of the Lal Bazaar Branch of the Bank. The statement of the Manager of Catholic Syrian Bank is that the Bankers had accommodated Express in their transactions and also the statements of the share brokers admitting the transaction to be bogus; and that the Settlement Commission in the case of Nariman Point Building Services Trading Private Limited, (a concern belonging to the Express group) has also given a clear finding that these transactions of Express group with the share brokers in Calcutta were not genuine.
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