SUPREME COURT OF INDIA
Saurashtra Kutch Stock Exchange Ltd.
CIVIL APPEAL NO. 1171 of 2004
September 15, 2008
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24. There is, however, no dispute by and between the parties that if there is a `mistake apparent from the record' and the assessee brings it to the notice of the Tribunal, it must exercise power under sub-section (2) of Section 254 of the Act. Whereas the learned counsel for the Revenue submitted that in the guise of exercise of power under sub-section (2) of Section 254 of the Act, really the Tribunal has exercised power of `review' not conferred on it by the Act, the counsel for the assessee urged that the power exercised by the Tribunal was of rectification of `mistake apparent from the record' which was strictly within the four corners of the said provision and no exception can be taken against such action.
25. The learned counsel for the Revenue contended that the normal principle of law is that once a judgment is pronounced or order is made, a Court, Tribunal or Adjudicating Authority becomes functus officio [ceases to have control over the matter]. Such judgment or order is `final' and cannot be altered, changed, varied or modified. It was also submitted that Income Tax Tribunal is a Tribunal constituted under the Act. It is not a `Court' having plenary powers, but a statutory Tribunal functioning under the Act of 1961. It, therefore, cannot act outside or de hors the Act nor can exercise powers not expressly and specifically conferred by law. It is well-settled that the power of review is not an inherent power. Right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed.
29. In view of settled legal position, if the submission of the learned counsel for the Revenue is correct that the Tribunal has exercised power of review, the order passed by the Tribunal must be set aside. But, if the Tribunal has merely rectified a mistake apparent from the record as submitted by the learned counsel for the assessee, it was within the power of the Tribunal and no grievance can be made against exercise of such power.
30. The main question, therefore, is: What is a `mistake apparent from the record'? Now, a similar expression `error apparent on the face of the record' came up for consideration before courts while exercising certiorari jurisdiction under Articles 32 and 226 of the Constitution. In T.S. Balaram v. Volkart Brothers, Bombay, (1971) 2 SCC 526, this Court held that "any mistake apparent 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". It was, however, conceded in all leading cases that it is very difficult to define an "error apparent on the face of the record" precisely, scientifically and with certainty.
31. In the leading case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104, the Constitution Bench of this Court quoted the observations of Chagla, C.J. in Batuk K. Vyas v. Surat Municipality, ILR 1953 Bom 191 : AIR 1953 Bom 133 that 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. The Court admitted that though the said test might apply in majority of cases satisfactorily, it proceeded to comment that there might be cases in which it might not work inasmuch as an error of law might be considered by one Judge as apparent, patent and self- evident, but might not be so considered by another Judge. The Court, therefore, concluded that an error apparent on the face of the record cannot be defined exhaustively there being an element of indefiniteness inherent in its very nature and must be left to be determined judicially on the facts of each case.
37. In our judgment, therefore, 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 while exercising certiorari jurisdiction. 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 face of the record means an error which strikes on mere looking and does not need long- drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no Court would permit it to remain on record. If the view accepted by the Court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record.
38. Though the learned counsel for the assessee submitted that the phrase "to rectify any mistake apparent from the record" used in Section 254(2) (as also in Section 154) is wider in its content than the expression "mistake or error apparent on the face of the record" occurring in Rule 1 of Order 47 of the Code of Civil Procedure, 1908 [vide Kil Kotagiri Tea & Coffee Estates Co. Ltd. v. Income-Tax Appellate Tribunal & Ors., (1988) 174 ITR 579 (Ker)], it is not necessary for us to enter into the said question in the present case.
39. As stated earlier, the decision was rendered in appeal by the Income Tax Appellate Tribunal, Rajkot. Miscellaneous Application came to be filed by the assessee under sub- section (2) of Section 254 of the Act stating therein that a decision of the `Jurisdictional Court', i.e. the High Court of Gujarat in Hiralal Bhagwati was not brought to the notice of the Tribunal and thus there was a "mistake apparent from record" which required rectification.
40. The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under Section 254(2).