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1991 DIGILAW 440 (ORI)

COMMISSIONER OF WEALTH TAX v. INCOME TAX APPELLATE TRIBUNAL

1991-11-22

ARIJIT PASAYAT, S.K.MOHANTY

body1991
JUDGMENT : A. Pasayat, J. - The short point involved in this writ application is whether the Income Tax Appellate Tribunal, Cuttack Bench (in short, " the Tribunal"), was justified in recalling its order dated April 12, 1989, passed in W. T. A. No. 28/CTK of 1988 in purported exercise of its powers u/s 35(1)(e) of the Wealth-tax Act, 1957 (in short, " the Act"). 2. The background facts are that the aforesaid appeal filed by the assessee before the Tribunal was dismissed by order dated April 12, 1989. The primary challenge in the appeal was to the valuation made by the Wealth-tax Officer, Dhenkanal, and affirmed in appeal by the first appellate authority. It was urged that the house at Bhubaneshwar was constructed for residential purposes and was partly used as residence-cum-office, and, therefore, the valuation should have been made in terms of rule 1BB of the Wealth-tax Rules, 1957 (in short," the Rules"). Similarly, the mode of valuation of the property situated at Dhenkanal was also in challenge. The Tribunal did not accept the contentions of the assessee and affirmed the conclusions of the authorities below. An application purported to be u/s 35(1)(e) was filed, inter alia, submitting that, contrary to the indication by the Bench hearing the appeal that the order shall be set aside and the matter shall be remanded to the Appellate Assistant Commissioner, the appeal has been dismissed. An affidavit was filed by learned counsel appearing for the assessee to that effect. The application was numbered as M. A. No. 7/CTK of 1989 and by order dated December 20, 1990, which is impugned in this writ application, the order was recalled. 3. The challenge of the Department in this writ application is that the exercise of jurisdiction u/s 35(1)(e) of the Act was uncalled for because there was no mistake apparent from the record which necessitated any amendment and, in any event, it was not open to the Tribunal to recall its order in its entirety. Mr. S. S. Rao, learned counsel for the assessee, however, submits that, when relevant materials were placed for consideration by the Tribunal, and the same were not considered, it amounted to a mistake which could be rectified by the Tribunal. 4. In our view, even without entering into a detailed analysis of the legal position, the order impugned cannot be sustained. S. S. Rao, learned counsel for the assessee, however, submits that, when relevant materials were placed for consideration by the Tribunal, and the same were not considered, it amounted to a mistake which could be rectified by the Tribunal. 4. In our view, even without entering into a detailed analysis of the legal position, the order impugned cannot be sustained. The Tribunal did not consider the applicability of Section 35(1)(e) of the Act and, by an unreasoned order, has disposed of the matter. The affidavit filed by the assessee was termed as "correct", without indicating as to of what it constituted correctness, and also how the Same had relevance to the question of applicability of Section 35(1)(e) of the Act. The Tribunal merely quoted the application, prayer and affidavit arid abruptly came to the conclusion that it accepted the affidavit as correct. Section 35 provides for rectification of mistakes in certain cases. A mistake is an omission made not by design but by mischance. The scope of the Section is limited to rectification of mistakes and not to review or revision. The mistake apparent from the record is a mistake that is manifest, plain or obvious and one which can be realised without a debate or dissertation. The mistake must be evident from the records of the case and not one which can be corrected by a process of elucidation or argument. There is no indication in the order regarding any such mistake. No reason has been indicated for exercise of powers u/s 35 of the Act. The order, being non-reasoned, is interdicted and is unsustainable. 5. Without being influenced by any observations made herein, the Tribunal shall rehear the matter and consider whether a case for exercise of power u/s 35(1)(e) of the Act is made out. We quash the impugned order, annexure 1, and remit the matter to the Tribunal with the aforesaid observations. 6. The writ application is, accordingly, disposed of. No costs. S. K. Mohanty, J. 7. I agree.