I.P. BANSAL, J.M.: Vide miscellaneous application filed as above Department has claimed that there are certain mistakes crept in order of Tribunal which require rectification. concerned appeal was decided by order of this Tribunal dt. 26th May, 2004 in ITA Nos. 1377 and 2188/Del/2002 in respect of asst. yrs. 1998-99 and 1999-2000. issue in respect of which rectification has been sought is regarding part disallowance of deduction under s. 80-I/80-IA. assessee is engaged in business of generation of electricity at various places by using coal and gas. dispute is in respect of units generating electricity by using gas. During course of assessment proceedings AO noticed that some of units had shown fuel cost while other units were showing no cost of fuel. It was explained that in gas turbines which uses gases for generation of electricity natural gas after mixing with air is burnt in gas combustion to produce gases at very high temperature and these gases are then used to run gas turbines for generation of electricity. After this cycle, exhaust hot gases released from gas turbine are routed through waste heat recovery boilers to utilize it in heating water and producing steam. steam produced in waste heat recovery boilers is then used to generate electricity in steam turbine attached separately with such boilers. steam turbine can only be run from hot gases released from gas turbine. steam turbine does not consume any fuel except waste hot gases of gas turbine. Thus it was explained that for generating electricity from steam turbine there was no cost of fuel. However, AO was of view that such released hot gas was value added product received from gas units and same was not ordinary air. steam generated by hot gas has value and it should take into account cost of fuel involved in its generation. waste hot gas used by assessee has commercial utility and, therefore, it cannot be said that it is not marketable product. Reference was also made to provisions of s. 80-I(6) according to which profits of each industrial undertaking have to be determined as such unit is only source of income of assessee. Reference was also made to s. 80-I(9) according to which where any valuable item is transferred from one unit to another unit then its market value should be taken into consideration. On these basis AO proceeded to estimate value of hot gas used in steam unit and accordingly claim of assessee regarding deduction under s. 80-I/80-IA was reduced. appeal was filed before CIT(A) who also upheld reduction of deduction. Aggrieved assessee filed appeal before Tribunal which has been decided by Tribunal by aforementioned order dt. 26th May, 2004. submissions made before AO and CIT(A) were reiterated. It was pointed out that hot gas released by gas units was waste gas which could neither be transported nor stored nor sold in market and it had to be exposed to open atmosphere if not utilized for generation of electricity in steam turbine. Certificate from Department of Mechanical Engineering, IIT, Delhi dt. 9th March, 2000 was also produced in which it was certified that exhaust gases were of much low pressure and had no combustible matter and are of no utility in any other application. With regard to applicability of ss. 80-I(6) and 80-IA(9) it was submitted that goods which have been referred therein must be held for purpose of eligible business and there must be transfer of goods either by eligible business to another business or by other business to eligible business and also consideration for transfer as recorded in accounts does not correspond to market value of such goods on date of transfer. It was submitted that there was no market value of such released hot gas, therefore, question of reducing value by notional value does not arise. Referring to s. 80-I(6) it was pleaded that cost of gas unit cannot be disturbed by shifting part of cost to other unit. It was pointed out that what would happen in worse situation that where gas unit had huge profits and steam unit had shown huge losses. In that situation Department would not shift operation of gas unit to steam unit invoking such provision. On other hand, learned Departmental Representative had relied on orders of AO and CIT(A). After considering submissions of both parties as per para 8, Tribunal held that no expenditure was incurred by assessee for hot gases utilized in steam turbine and, therefore, there is no question of debiting any amount on account of such notional expenses and hot gas was freely available to steam unit and if assessee has not set up steam unit such hot gas would have to be exposed to open atmosphere. There is no evidence on record that such hot gas can be sold in open market. Due to advanced technology only gas which was going waste could be utilized for generating electricity. Thus it was held that no portion of expenditure incurred by gas unit can be allocated to steam unit. Applicability of s. 80-I(6) as well as ss. 80-I(8) and 80- IA(9) was also considered in paras 9 and 10 and it was held that no help can be derived by Revenue from these sections to make case of AO acceptable and it was held that course adopted by AO for shifting portion of expenses incurred by gas unit to steam unit was not permissible in law and, therefore, cannot be approved. Thus AO was directed to allow deduction under ss. 80-I and 80-IA without allocating any expenditure of gas unit to steam u n i t . It is against these findings of Tribunal, Department has filed miscellaneous application contending therein that order of Tribunal suffers from infirmities of fact and in law and, therefore, needs to be reviewed by hearing miscellaneous application. It is pointed out in miscellaneous application that order of Tribunal is infirm because it proceeded to determine profits as per commercial accounting practice. According to Department such observations are wrong as profits and gains in industrial undertaking should be determined as per IT Act and not as per commercial accounting practice. It is pointed out that sister units (gas unit) had spent substantial amount to obtain natural gas from which hot gas was derived and it was made freely available to sister unit and thus steam unit was able to generate crores of income. It is also pointed out that fuel cost of steam unit was indirectly met by gas unit. It is pointed out that in fact gas turbine and steam turbine are one integrated unit as steam turbine being completely dependable for fuel upon gas turbine without which it was not capable of production of electricity. Reference has been made to various decisions which include decision of NTPC Ltd. and it is mentioned that present order of Tribunal is contrary to that. It is further mentioned in application that Tribunal is wrong in holding that there is no market value for hot gas and Tribunal is also wrong in holding that provisions of ss. 80-I(6), 80-I(8) and 80-IA(9) are not applicable to facts of case. It is also mentioned that there being no reference of certificates produced by assessee from IIT, Delhi which constituted additional evidence. On these grounds it is prayed in miscellaneous application that suitable modification of order should be done. learned Departmental Representative, reading from contents of misc. application pleaded that there are certain infirmities in order of Tribunal which are required to be reviewed and thus she pleaded that suitable modification of order of Tribunal should be made. On other hand, learned counsel for assessee contended that all aspects have been considered by Tribunal on merits and after considering various contentions, position of law and provisions of statute, Tribunal has come to conclusion that allocation of expenses as done by AO was not warranted as same was against provisions of law. There was no fuel cost to steam unit and whatever cost of fuel was that was pertaining to gas unit. Thus firstly, he contended that when conscious decision has been taken by Tribunal, same cannot be said to be liable for rectification as scope of power under s. 254(2) is very limited. mistake under s. 254 is mistake which is obvious or patent only. mistake which requires to be established by arguments and on long run process of reasoning on points on which there may be conceivably two views cannot be mistake apparent from record within meaning of s. 254. For this purpose he relied on following decisions: (i) Abbey Chemical (P) Ltd. vs. ITO (2005) 94 TTJ (Ahd) 275; (ii) Karan & Co. vs. ITAT (2001) 169 CTR (Del) 361: (2002) 253 ITR 131 (Del). Further he submitted that Department had filed appeal before Hon ble Delhi High Court raising therein similar contentions which have been raised in miscellaneous application and said appeal of Department has been dismissed by Hon ble High Court vide its order dt. 3rd Dec., 2004 on ground that no clearance from High Power Committee on Disputes was produced to contest appeal. He further pointed out that Department had sought permission from H i g h Power Committee on Disputes to contest appeal against abovementioned order of Tribunal where request for permission has been rejected by Committee on Disputes on 8th June, 2005 with following observations: "The Committee heard parties in detail with respect to orders of CIT(A), agenda note submitted by CBDT and orders dt. 26th May, 2004 of Delhi Bench of Tribunal. Committee noted that contention of Department of Revenue is that assessee has not debited fuel cost utilized for generation of power in units under reference and further that AO has appropriately calculated fuel cost involved and debited it to P&L a/c and reduced deduction under ss. 80-I and 80-IA. Committee expressed view that Tribunal has very appropriately observed that if assessee had not set up steam units in their projects, such hot gas would have to be exposed to open atmosphere and also that there is no evidence that such hot gas can be sold in open market. Advanced technological innovations have prevented such hot gas going to waste, which can be utilized for generation of electricity. Since there is no evidence of any market for sale of such waste hot gas, Committee did not find any merit in contentions of CBDT. Committee accordingly decided not to accept request of CBDT for giving clearance for filing appeal in High Court against orders of Tribunal." He further referring to misc. application filed by Revenue pointed out that what is being sought by Revenue is review of order which is not permissible under provisions of s. 254(2) of Act. He referred to following paras of misc. application to show that Department too in its own view seeking review of Tribunal order: "By this misc. application it is to bring to kind notice of Hon ble B Bench Tribunal that order passed by Hon ble Bench suffers from following infirmities on facts and in law and, therefore, needs to be reviewed by hearing this miscellaneous application. Hon ble Bench s order is infirm in facts and in law in holding view based on letter wrongly quoted as letter written by Secretary (Revenue) which is factually incorrect and needs to be reviewed on correct facts." (emphasis, italicised in print is ours) Thus he pleaded that misc. application filed by Revenue deserves to be dismissed. We have carefully considered rival submissions in light of material placed before us. We have carefully gone through order of Tribunal. While deciding issue Tribunal has taken into consideration all factors based upon which Department has made allocation of expenses. All aspects have been considered. It was observed that hot gases were waste products and by using advanced technology same could be used to generate electricity. It is also observed that there was no material on record that released hot gas was marketable product. Provisions of ss. 80-I(6), 80-I(8) and 80-IA(9) are referred to in order and after discussing these provisions view has been expressed that same cannot be applied to support allocation of expenses as done by AO. According to Department these findings of Tribunal are contrary to law. In entire misc. application it has not been specifically pointed out that which is particular mistake which has crept in order of Tribunal. mistakes which have been pointed out by Department may constitute error in judgment but that does not become error in decision itself to describe same as "mistake" within meaning of s. 254(2). Thus we are of opinion that there is no mistake in order of Tribunal to fall within purview of s. 254(2) and what Department is seeking from Tribunal is review of its order which according to well established law, is not permissible under provisions of s. 254(2) of Act. Thus application filed by Department deserves to be dismissed. There is one more aspect of matter that similar submissions were made by Department while seeking permission from Committee on Disputes to contest appeal filed in Hon ble High Court against aforementioned order of Tribunal . relevant observations of Committee on Disputes have already been reproduced in above part of this order. Committee has also observed that there is no evidence to substantiate fact that such waste hot gas can be sold in open market and thus there is no merit in contention of Department that such allocation of expenses could be made. It is in this situation, request to contest appeal by Department before Hon ble High Court against abovementioned order of Tribunal was rejected. Thus in view of subsequent development also Department is precluded from in view of subsequent development also Department is precluded from contesting this miscellaneous application as if present misc. application is contested by Revenue even after rejection of its request by High Power Committee on Disputes to contest very issue in further appeal; it will tantamount to do thing indirectly which is not permitted to be done directly. In this regard proposition of law is well settled that what cannot be done "per directum" is not permissible to be done "per obliquum", meaning thereby whatever is prohibited by law to be done, cannot legally be effected by indirect and circuitous contrivance on principle of "quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud". In this manner also application filed by tax Revenue is liable to be rejected. Therefore misc. application filed by Revenue cannot be accepted. In result, misc. application is dismissed. *** ADDITIONAL COMMISSIONER OF INCOME TAX v. NATIONAL THERMAL POWER CORPORATION LTD.