2006 PLP 324 (PTD)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

Through all these appeals under section 27 of the Wealth Tax Act, 1963, the following common questions have been proposed allegedly arising out of the order dated 12-2-2000, passed by the ITAT in M.A. (Rect.) Nos.195 to 198/Kb of 1999-2000. "(i) Whether the learned Income Tax Appellate Tribunal (Respondent No.3) has not misdirected itself in law by dismissing the application when in the body of the order it has been admitted that the exemption was available to loans and capital invested out of foreign exchange? (ii) Whether the learned Income Tax Appellate Tribunal (Respondent No.3) has correctly interpreted its own judgment reported as (1999) 79 Tax 152 (Trib.)? (iii) Whether the learned Income Tax Appellate Tribunal has correctly interpreted the words `Capital invested'? (iv) Whether the learned Income Tax Appellate Tribunal has correctly interpreted the provisions of clauses 7(1) and (2) of Part-I of Second Schedule to the Wealth Tax Act, 1963? (v) Whether the learned Income Tax Appellate Tribunal has not misdirected itself in law in holding that exemption of assets created out of foreign remittance was not available under clauses 7(1) and (2) of Part-I of Second Schedule to the Wealth Tax Act, 1963? Briefly stated the relevant facts are that the appellant filed W.T.A. No.165/KB to 168/KB of 1998-1999, before the ITAT in respect of assessment years 1993-94 to 1996-97. In the appeals findings of the learned lower forum refusing the exemption on the capital invested out of foreign exchange was assailed. The appeals were dismissed vide order dated 4-5-1999 upholding the action of IAC disallowing exemption in respect of FEBC encashment. The appellant instead of filing appeal before this Court in accordance with law, at the relevant time filed rectification application contending that the order of the Tribunal suffers from mistake apparent on record which may be rectified. The Tribunal rejected the rectification applications vide order dated 12-2-2000, holding that there was no error of law in the judgment. After dismissal of the rectification applications, the appellant has preferred these appeals proposing the questions referred to above. We have heard Mr. Arshad Siraj, learned counsel for the appellant and Mr. Jawaid Farooqi, learned counsel for the respondent. During the course of arguments, Mr. Arshad Siraj had no option but to concede that except Question No.1, no other question arises out of the order dated 12-2-2000. The Questions Nos.2 to 5 arise out of the order dated 4-5-1999 deciding the main appeals. It is admitted position that no appeal was filed against the order dated 4-5-1999, with the result that the appeals proposing the questions arising out of the order dated 4-5-1999 have become hopelessly barred by time. The questions which arise out of the order of the 'Tribunal and are not assailed through a properly constituted appeal before this Court cannot be allowed to be assailed while challenging the order of Tribunal in rectification application and not arising out of the order on 'rectification application. So far, the Question No.1, which arises out of the order of Tribunal dated 12-2-2000, passed on rectification application, the point for consideration is, whether the Tribunal was justified in rejecting the rectification application. In order to determine this issue, the relevant consideration is, whether a deliberate finding of the Tribunal or any other authority amounts to mistake apparent on record. We are of the opinion that a deliberate finding by an authority or an interpretation is not mistake apparent on record, as envisaged under section 35 of Wealth Tax Act, 1963. If there is a considered and deliberate finding and a party to the proceeding does not agree with the finding and even if there is a possibility that it may not sustain in appeal, still it would not be a mistake apparent on record. A mistake apparent on record is only such finding which is made on account of ignorance of the law or fact or by non-consideration of any fact or law, or is violative of any established principle of law or any judgment of superior Court or is patently against the fact available on record. The other requirement is that it should be apparent on record, meaning thereby that is obvious and floating on surface and for discerning whereof no long drawn process of argument is needed. If a deliberate finding is given by the process of interpretation of any statute or ratio of any judgment or by way of appreciation of facts which may not be sustainable in appeal is not a mistake apparent on record. It may be a finding of fact or law which may be successfully challenged before the appellate forum but it would not amount to a mistake apparent from the record. In the present case, the Tribunal gave a deliberate finding disagreeing with the contentions raised before it on behalf of the assessee and while rejecting the rectification application held that a plea raised for rectification of the Tribunal's order was misplaced as the construction placed by the learned counsel for the assessee was out of context. We are of the opinion that since there was no mistake apparent on record, in the order of Tribunal, though it may be a point, which required further consideration. Thus, question of rectification under section 35 of the Wealth Tax Act, 1963, was not there. The assessee had the right of appeal, which he could exercise by filing appeal before this Court but that remedy was not availed. In the above circumstances, it is held that the Questions Nos.2 to 5, do not arise out of the order' of Tribunal dated 12-2-2000, and Question No.1 does not require any interpretation by this Court as the rectification application was dismissed for the reason that there was no mistake apparent on record and such finding is not open to any exception. All the four Reference Applications stand dismissed accordingly. M.H./N-79/K????????????????????????????????????????????????????????????????????????????????????? Reference dismissed.