Judgment :- CHITRA VENKATARAMAN, J. The following are the questions of law raised by the assessee in these appeals filed against the order of the Tribunal relating to the assessment years 1989-90 and 1991-92. 1. Whether on the facts and the circumstances of the case, the Tribunal was right in law in holding that since the assessee has not claimed that the rate of tax applicable to it as per provisions of Part II of Schedule I of the Wealth Tax Act at the assessment stage or at the appellate stage, there is no mistake of apparent from the record which needs to be rectified ? 2. Whether on the facts and the circumstances of the case, the Tribunal was right in holding that non-application of the correct provisions of the Act, does not amount to mistake apparent from record ? 2. The assessee herein filed the return of income for the assessment year 1989-90 under the Wealth Tax Act declaring a net wealth of Rs.18,15,700/-. The assessment was subsequently reopened under Section 16(2) of the Wealth Tax Act and additions were made. As against the order of the assessing officer making additions, the assessee preferred an appeal to the Commissioner of Income Tax (Appeals), who allowed the appeal in part. Leaving that aside for a moment, it is stated by the assessee that it came to know that as per the provisions of Part II of Schedule I of the Wealth Tax Act, where an assesee incurred loss and had not declared the dividend the rate of wealth tax would be nil. Thus, on the slab of Rs. 5 lacs net wealth, the rate is nil and on the balance of the net wealth is ½ a percent. By reason of proviso to the said Part II of Schedule I, a company incurring a net loss in any year and has not declared any dividend on its equity capital in respect of the year shall not pay any tax by reason of rate of tax for the relevant year being nil. 3. By reason of proviso to the said Part II of Schedule I, a company incurring a net loss in any year and has not declared any dividend on its equity capital in respect of the year shall not pay any tax by reason of rate of tax for the relevant year being nil. 3. On coming to know of the same, the assessee filed a rectification petition on 14.12.1995 and submitted that it had incurred loss as per the revised order of Income Tax dated 19.12.1991 and had not declared the dividend for the year ending 31.3.1989 and consequently it sought for revising the assessment on the ground that the rate to be adopted for wealth tax would be nil. The said contention was rejected by the Deputy Commissioner of Income Tax in his order dated 23.2.1996. Aggrieved by the same, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who pointed out that the assessee had sustained a loss for the year 1990-91 and even if depreciation is excluded there would be a loss for the assessment year 1990-91. So too for the assessment year 1989-90. As regards the assessment year 1988-89, if the depreciation is excluded there would be no loss for the said assessment year. Thus, the proviso in Part II in Schedule I, would apply to the assessment years 1989-90 and 1990-91 only and would not be applicable to the assessment year 1988-89. As against the order of the Commissioner of Wealth Tax (Appeals) allowing the assessee's appeal, the Revenue went on appeal before the Tribunal which pointed out that the assessee had not made any claim before the authorities below that it was a loss making company and had not declared any dividend for the relevant assessment years. The facts were not available before the Assessing Officer at the time of the assessment and the claim was made only subsequently on the strength of the revised order of assessment dated 19.12.1991. Taking note of all the facts, the Tribunal held that there was no mistake apparent from the record which could be rectified and pointed out that the Commissioner of Wealth Tax (Appeals) had gone beyond the records and looked into fresh evidence or materials which were not on record. Hence the order of the Commissioner of Wealth Tax (Appeals) was liable to be reversed. Hence the order of the Commissioner of Wealth Tax (Appeals) was liable to be reversed. Aggrieved by the said order the assessee is on appeal before us. 4. In support of the contention that the Wealth Tax Officer should have allowed the rectification petition on the ground that the assessee was a loss making company and had not declared dividend, the learned counsel appearing for the assessee placed reliance on the decision of this court reported in 143 ITR 269 (T.Manickavasagam Chettiar Vs. Commissioner of Income Tax) and 149 ITR 525 (Commissioner of Income Tax Vs. Sundaram Textiles Limited). 5. Per contra, learned Standing Counsel appearing for the Revenue pointed out to the provisions of Section 35 of the Wealth Tax Act and submitted that the provision to rectify a mistake as available under Section 35 is restricted to any mistake apparent from the record. However, the facts regarding the loss suffered by the assessee and non-declaration of dividend were not available before the Wealth Tax Officer at the time of making assessment. When these facts did not form part of the record, admittedly, subsequent to the assessment it was not open to the asseessee to seek for rectification of the mistake, if any, under Section 35 of the Act. 6. We agree with the submissions made by the learned Standing Counsel appearing for the Revenue. It is seen from the orders placed before this court that the assessment in this case was made on 12.3.1992 under Section 16(3) of the Act. A perusal of the order of the Wealth Tax assessment shows that it was more in the nature of additions made to the net wealth declared. Admittedly as against this order, the assessee had gone on appeal . The narration of statement of facts before this court as well as before the authorities below would show that the prayer for rectification under Section 35 itself was sought for based on the assessment made under the Income Tax Act. The revised order of assessment was made on 19.12.91 and based on this alone, the assessee filed rectification petition on 14.12.1995. Thus, the admitted case of the assessee is that these facts were not placed before the assessing authority to form part of the record for the purpose of considering the maintainability of the rectification petition. The revised order of assessment was made on 19.12.91 and based on this alone, the assessee filed rectification petition on 14.12.1995. Thus, the admitted case of the assessee is that these facts were not placed before the assessing authority to form part of the record for the purpose of considering the maintainability of the rectification petition. Going by the said fact that the rectification is in respect of the materials which were not available on record, rightly, the Tribunal held that the relief cannot be granted to the assessee based on the materials which did not form part of the records . 7. So far as the reliance placed on the decision reported in (1983) 143 ITR 269 (T. Manickavasagam Chettiar Vs. Commissioner of Income Tax) is concerned, we do not find that the said decision would come to the rescue of the assessee since the relief granted by the Assessing Officer under Section 80T of the Income Tax Act, 1961 was with reference to the materials which were available on record as contemplated under Section 154. The relief granted in the original assessment was a mistake which was sought to be rectified under Section 154 by withdrawing the benefit granted under Section 80T. In considering this claim this court referred to the decision of the Apex Court reported in (1961) 41 ITR 732 (SC) (Income Tax Officer Vs. Ashok Textiles Ltd.,) which considered Section 35 of the Indian Income Tax Act, 1922 which corresponds to Section 154 of the Income Tax Act , 1961. Pointing out the differences between Section 35 of the Indian Income Tax Act and Order 41 Rule 1 of CPC that the expression "apparent from the record" as available under Section 35 is quite different from "apparent on the face of the record" occurring in Order 41 Rule 1 of CPC , the Apex Court held that the Income Tax Officer had power to examine the record and if on such examination he discovered that he had made a mistake, he could rectify the error, which may be an error of fact or of law, provided, no additional material or reasoning is necessary to detect that mistake. The Supreme Court sustained the rectification in that case on the ground that the non-applicability of the provisions of the Finance Act, was a mistake apparent from the record. 8. The Supreme Court sustained the rectification in that case on the ground that the non-applicability of the provisions of the Finance Act, was a mistake apparent from the record. 8. Applying the said decision to the facts of the case herein, it is no doubt true that if the facts as regards the loss sustained by the company and the non-declaration of the dividends were very much available on record before the Assessing Officer at the time of assessment and that in spite of such materials available, the Assessing Officer had omitted to note the proviso to Part II of Schedule I of the Wealth Tax Act and ignored the said proviso, consequently the assessee would be justified in his plea seeking rectification under Section 35 of the Act. However, when on the admitted fact that the claim of loss and non-declaration of dividend itself was made long after the revised assessment order and it never formed part of the record, we have no hesitation in holding that the said facts being materials out side the record, the Tribunal was correct in holding that the recourse to Section 35 was legally not sustainable and thus rejecting the case of the assesee. 9. Accordingly, the Tax Case Appeals are dismissed. No costs.