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After considering the objections, the assessing authority passed orders of rectification on 2nd April, 1993 holding that the deduction of packing charges from the total turnover, was a 'mistake apparent from the record' and rectified the orders by including the packing charges in the taxable turnover of the assessee. Aggrieved by the said rectification orders, the petitioner has filed these petitions.

5. Sri Kishore Mallya, learned counsel for the petitioner, submitted that unless there is a mistake apparent from the record, jurisdiction under s. 25A could not be exercised; that there was no error or mistake at all, in deducting the packing charges as such deduction was authorised by r. 6(4)(ff); and even assuming that an error can be made out now, it does not follow that there is any mistake apparent from the record, as the question whether packing charges were taxable was very much an issue open to much debate, doubt and conflict at the time of passing the assessment orders, and the mere fact that subsequently the Supreme Court had resolved and settled the issue did not obliterate the existence of such debate, doubt and conflict prior to such decision and in such circumstances, there was no jurisdiction in the assessing authority to rectify any order, under s. 25A. He also submitted that the alleged mistake could not be made out except upon a long and elaborate argument and further investigation of facts. He, therefore, submitted that the rectification orders were without jurisdiction and, therefore, liable to be set aside in writ proceedings, even though remedy by way of appeal was available under the statute.

"With a view to rectifying any mistake apparent from the record, the assessing authority, appellate authority or revising authority, may, at any time, within five years from the date of an order passed by it, amend such order."

What is a 'mistake apparent from the record' has been the subject- matter of several decisions under the IT Act, Sales-tax Laws and Civil Procedure Code. Reference to the relevant decisions will be useful.

14. In M.K. Venkatachalam, ITO vs. Bombay Dyeing & Manufacturing Co. Ltd. , the Supreme Court considered the scope of rectification under s. 35 of Indian IT Act, 1922. In that case the assessing authority had given credit for interest on advance tax acting under s. 18A(5). Subsequently s. 18A(5) was amended with retrospective effect and consequently the assessing authority rectified his previous order on the basis of the amended section. The Bombay High Court took the view that s. 35 did not permit rectification on the basis of retrospective amendment of a statutory provision, holding that the order giving credit for interest on advance tax when made, was wholly in accordance with the provision of law which then existed. This was reversed by the Supreme Court which took the view as a consequence of retrospective amendment of s. 18A(5), the section as amended should be regarded as having been in force on the date of the original order and that would make the order wrong automatically; the mistake so brought about in the order, by the retrospective amendment was a 'mistake apparent on the record' amenable to rectification under s. 35 of the IT Act. To quote the principle in the words of the Supreme Court :

23. In T.S. Balaram, ITO vs. Volkart Bros. & Ors. , the Supreme Court held that 'a mistake apparent on record' must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions; and a decision on a debatable point of law is not a mistake apparent from the record.

24. In Kil Kotagiri Tea & Coffee Estates Co. Ltd. vs. ITAT (1988) 174 ITR 579 (Ker), K.S. Paripoornan, J. speaking for a Division Bench of Kerala High Court observes :

26. Therefore, in the final analysis, what is a 'mistake apparent from the record', capable of being rectified ? A mistake, either of fact or of law, glaring and obvious from the record itself, capable of identification, without a detailed investigation or enquiry or elaborate arguments, in regard to which there could reasonably be no two opinions is a 'mistake apparent from the record'. If it relates to a fact, it should be possible to say 'this is obviously a mistake'. A decision on a debatable point of law will not, however, be a mistake apparent from the record. A point on which there is no decision of the Supreme Court or of the concerned High Court, and in regard to which two or more views are possible, is a debatable point of law. A point of law on which there are divergent views of other High Courts, is a debatable point of law. Hence, there cannot be a rectification of an order, merely on the ground that a contrary decision was rendered on the point involved by a High Court other than the High Court of the concerned State. It is needless to point out that when a point is covered by a decision of the Supreme Court or concerned High Court, either rendered prior to or subsequent to the order proposed to be rectified, then the point ceases to be a debatable point; it also ceases to be a point requiring elaborate arguments or detailed investigation/enquiry. To encapsulate, the following will be 'mistakes apparent from the record' relating to a question of law :