JUDGMENT Arijit Pasayat, C.J.
1. In these two cases, at the instance of the assessed, the following question has been referred for the opinion of this court under Section 256(1) of the Income-tax Act, 1961 (in short, "the Act"), by the Income-tax Appellate Tribunal, Delhi Bench-C (in short, "the Tribunal") : "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in holding that the relief under Section 80M given to the assessed originally was a mistake rectifiable by the Income-tax Officer under Section 154 of the Income-tax Act, 1961 ?"
2. The above being the position, our judgment shall govern each of the two cases, i.e., I. T. R. Nos. 128 and 129 of 1978.
3. The factual position as indicated in the statement of case is as follows :
4. For the assessment years 1968-69 and 1969-70, the assessed, a private limited company, filed its returns of income showing loss of Rs. 54,055 and Rs. 1,14,945, respectively, in respect of incomes from (a) interest on securities, (b) house property, (c) business of running hotels at Agra and Kasauli and plying of taxis in U. P., (d) dividends, and (e) capital gains. The assessments were completed for the two years on December 31, 1971, and January 12, 1972, respectively. The computation of income for two years was done as follows :
"1968-69 :
(a) Interest on securities 135
(b) Income from house properly 21,847
(c) Business {loss} 89,313"
(d) Income by way of dividends 59,435 Less : Deduction under section 80M at 50 per cent.
35,661 23,774
(e) Long-term capital gains 14,994 Balance loss to be set off :
50,545"
* Business loss of Rs. 90.030 off set by profit under section 41(2) of Rs. 1.717.
" In the above calculation there was a mistake in that items (a) and (b) were left out of account due to oversight. Development rebate of Rs. 16,335 had also been deducted in working out the business loss.
1969- 70 :
(a) Interest on securities 143
(b) Income from house property 20,028
(c) Business (loss) 78,634*
(d) Income by way of dividends 74,001 Less : Exempt under section 80L 500 Exempt under section 80M at 60 per cent.
44.890 29,401 49,572 Balance loss 29,002 Loss carried forward from assessment year 1968-69 50,545 79,607 "
* There was a mistake in the computation in that dividends added back for separate consideration was taken as Rs. 74,00 instead of Rs. 74,001. The figure takes into account depreciation of Rs. 53,249 and development rebate of Rs. 6,605 wrongly mentioned in the assessment order as Rs. 53,247 and respectively. It also includes a profit of Rs. 4,060 assessable under section 41(2)."
5. On March 22, 1973, orders under Section 154 of the Act in respect of both the assessment years were passed by the Income-tax Officer. He was of the opinion that deductions permitted under Section 80M had been wrongly computed while making the original assessment. Before passing order under Section 154, the assessed was granted an opportunity to have its say. Objections were filed by the assessed questioning the legality of proceedings and the proposed manner of computation. The Assessing Officer did not accept the stand and proceeded to pass orders under Section 154 of the Act and the income was computed in the following manner for the two years :
1968-69 :
(a) Interest on securities Rs.
135(b) House property income Rs.
21,847
(c) Profit under section 41(2) Rs.
1,717
(d) Income from dividends Rs.
59,435 Rs.
83,134
(e) Less : Business loss Rs.
78,139* Rs.
4,995 Less :Development rebate Rs.
4,995"
Nil
(f) Income from capital gains Rs.
14,994 This figure is due to variation in the correct figure of depreciation (+Rs.
444) and exclusion (-Rs. 16,335). Thus, the previous figure of Rs.
90,030 becomes Rs. 78,139.
"
* Balance of development rebate of Rs. 11,360 (sic) is allowed to be carried forward." 1969-70:
(a) Interest on securities RS.
145(b) House property income Rs.
20,028
(c) Income from dividends Rs.
74,001 Rs.
94,172
(d) Less: Business loss Rs.
1,04,723' Rs.
10.551
(e) Profit under section 41(2) Rs.
4,060"
Net loss :
Rs.
6,491 * :
This corrects the figure of Rs. 7,400 into Rs. 74,001 excludes Rs. 4,060 under section 41(2) and takes into account a depreciation of Rs. 56,902.1
The development rebate of Rs. 6.605 pertaining to this year and Rs. 11,360 pertain-ing to 1968-69 are directed to be carried forward.
6. The assessed challenged the orders passed under Section 154 before the Appellate Assistant Commissioner (in short, "the AAC"). The said authority was of the view that the issue as to whether the relief allowable under Section 80M was computed correctly at the time of original assessment is not an issue which can be treated to be a mistake apparent from the record. He was of the view that interpretation of Section 80M raises issues which are of controversial nature. That being the position, he cancelled the orders. The Revenue carried the matter in appeals before the Tribunal. It was urged before the Tribunal by the Revenue that the mistakes in the computation were clearly discernible from the record and the orders under Section 154 of the Act had been rightly passed. The assessed's stand, on the other hand, was that the problem was not free from difficulty and needed interpretation of Sections 80A and 80B(5) and 80M. That being the position Section 154 had no application. The Tribunal proceeded to examine the computation as done by the Income-tax Officer on the merits. After referring to the definitions of various provisions it came to hold that the second stage in the process of computation related to arriving at figures of gross total income. It went on to compute the deductions under Sections 80L and 80M and it did not find any substance in the plea of the assessed that controversial issues were involved. The orders of the Income-lax Officer were restored by setting aside the order passed by the Appellate Assistant Commissioner in the first appeal. On being moved for reference, the question as set out above has been referred.
7. There is no appearance on behalf of the assessed in spite of notice. We have heard learned counsel for the Revenue. Since a reference has been made by the Tribunal, we have taken up the cases for hearing on the merits, notwithstanding assessed's non-appearance.
8. Counsel for the Revenue submitted that what would be the computation under Section 80M is a matter of pure arithmetic and calculation. Even, if some analysis of the provisions is called for in this regard, that does not affect the powers conferred under Section 154 of the Act.
9. A bare look at Section 154 of the Act makes it clear that a "mistake apparent from the record" is rectifiable. In order to attract the application of Section 154, the mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended. "Mistake" means to take or understand wrongly or inaccurately ; to make an error in interpreting ; it is an error ; a fault, a misunderstanding, a misconception. "Apparent" means visible ; capable of being seen, obvious ; plain. It means "open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under Section 154 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. In our view amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of Section 154 and, therefore. the Tribunal was not justified in holding that there was mistake apparent on the face of the record. In order to bring in application under Section 154, the mistake must be "apparent" from the record. Section 154 does not enable an order to be reversed by revision or by review, but permits only some error which is apparent on the face of the record to be corrected. Where an error is far from self-evident, it ceases to be an apparent error. It is, no doubt, true that a mistake capable of being rectified under Section 154 is not confined to clerical or arithmetical mistakes. On the other hand, it does not cover any mistake which may be discovered by a complicated process of investigation, argument or proof. As observed by the apex court in Master Construction Co. (P.) Ltd. v. State of Orissa [1966] 17 STC 360, an error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. A similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, . It is to be noted that the language used in Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 (in short, "the CPC"), is different from the language used in Section 154 of the Act. Power is given to various authorities to rectify any mistake "apparent from the record" under Section 154 of the Act. In the Civil Procedure Code, the words are "an error apparent on the face of the record". The two provisions do not mean the same thing. The power of the Tribunal in Section 154 to rectify "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." (see T.S. Balaram, ITO v. Volkart Bros. ). "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate is discerned. The word "mistake" is inherently indefinite in scope, as to what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under Section 154, it is not sufficient if there is merely a mistake in the order sought to be rectified. The mistake to be rectified must be one apparent from the record. A decision on a debatable point of law or a disputed question of fact is not a mistake apparent from the record. The plain meaning of the word "apparent" is that it must be something which appears to be so ex facie and it is incapable of argument or debate. It, therefore, follows that a decision on a debatable point of law or fact or failure to apply the law to a set of facts which remains to be investigated cannot be corrected by way of rectifications. On the facts of the present case, we find that there was no mistake apparent from the record which could be rectified under Section 154 the Act. We find that as the Tribunal proceeded to deal with the matter as if it was dealing with an appeal regarding computation of income. It referred to various provisions to work out the details. It is to be noted that in the order under Section 154 the Income-tax Officer observed that in his opinion Section 71 is not relevant to the provision (Section 80M) regarding allowability of deductions mentioned in Chapter VI-A, On the other hand, the Tribunal while working out the figures observed in paras. 7 and 8 of the order as follows :
"7. We think that the first step towards the application of Sections 80L and 80M is the determination of the gross total income for which all we have to do is to compute the total income as it would be before making the deductions under Sections 80L and 80M, the first step would be to classify the items of income and losses under the various heads. This presents no difficulty whatever. The computation under Section 14 will be as follows for the two assessment years in question :
Head of income 1968-79 1969-70 Rs.
Rs.
(a) Interest on securities 135 143
(b) Income from house property 21.847 20,028
(c) Profits and gains of business or profession 76,422 1,00,663
(d) Capital gains 14,994 Nil
(e) Income from other sources (dividends) 59,435 74.001
(ii) Now we come to the second stage of arriving at the figure of gross total income. For the assessment year 1968-69, Section 71(2) is attracted. The loss of Rs. 76,422 is first set off against items (a), (b) and (c) having a surplus of Rs. 4,995 and deducting development rebate, there is a resultant nil figure.
This leaves the figure of capital gains alone (before relief under Section 80T) as the figure of gross total income. But this amount of capital gain before Section 80T relief is not available and we shall, therefore, refer to it as the gross capital gains. So far as 1968-69 is concerned, the position is very simple for the gross total income is a negative figure since the business toss is so heavy as to remain unabsorbed wholly by the income derived by the assessed under various heads.
8. Now we have to allow the reliefs under Sections 80L and 80M. In doing so we must bear in mind that Section 80R(2) contains a mandate that the aggregations of the deductions under Chapter VI-A cannot exceed the gross total income. In the assessment year 1968-69, the Income-tax Officer has to consider deduction under Sections 80T and 80M, he has allowed the former and so the deduction under Section 80M cannot exceed Rs. 14,994 (which is the figure of gross total income minus Section 80T relief). In the assessment year 1969-70, the gross total income being nil, there can be (no ?) deduction under Sections 80L and 80M at all."
10. It is, therefore, clear that while the Income-tax Officer ruled out the application of Section 71, the Tribunal proceeded on the footing that for the assessment year 1968-69, Section 71(2) is attracted. That being the position, the Tribunal was clearly in error in holding that no debatable issues were involved thereby permitting application of Section 154 of the Act to the facts of the case. In the background of legal propositions, which we have analysed, the inevitable conclusion is that so-called mistakes were not of the nature covered by Section 154 of the Act.
11. Our answer to the question is, therefore, in the affirmative, in favor of the assessed and against the Revenue.