TMI Blog2008 (1) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... r dt. 21st July, 2006 which reads as under : "3. When the matter came up for hearing, nobody appeared on behalf of the assessee. However, the learned counsel for the assessee Shri S.K. Goel sent a fax asking for exemption from personal appearance. However, he has referred to a fax dt. 5th May, 2006 wherein certain case law have been relied upon. One of the case law relied upon is of Lalson Enterprises v. Dy. CIT [2004] 82 TTJ (Del)(SB) 1048 : [2004] 89 YTD 25 (Del)(SB) wherein the Special Bench has held that for the purposes of applying Expln. (baa) below s. 80HHC(4B) while reducing 90 per cent of receipt by way of interest from profit of business it is only 90 per cent of net interest remaining after allowing a set off of interest paid w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppln. No. 529/Del/2005 arising out of ITA No. 2028/Del/2000 in the case of Liberty Footwear Co. (asst. yr. 1996-97, order dt. 6th Jan., 2006). 3. Thus, he has argued that the learned Departmental Representative conveniently did not point out the facts that the case of Rani Paliwal v. CIT [2003] 185 CTR (P H) 333 : [2004] 268 ITR 220 (P H) was fully discussed in the Misc. Appln. No. 533/Del/2005 in the case of Liberty Footwear Co. Similarly, the judgment of Punjab Haryana High Court stands discussed in Misc. Appln. No. 532/Del/2005 in the case of Liberty Footwear Co. The learned counsel has further submitted that the Hon'ble Bench, after due deliberation and discussion of the aforesaid judgment of the Hon'ble High Court had dismissed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o s. 80HHC of the Act makes this aspect quite clear and we are of the view that the Tribunal was right in disallowing the claim of the assessee in this regard'. We are afraid that there is no reasoning expressed by the High Court for arriving at such a conclusion, For instance, there is no discussion of the CBDT circular and in particular para 32.11 thereof which indicates that netting is contemplated in Expln. (baa). Also, it does not notice the effect of the words 'included in such profits' following the words 'receipts by way of interest' in the said Explanation. We are therefore unable to subscribe to the view taken by the Punjab Haryana High Court in Rani Paliwal v. CIT." 4. On the other hand, the learned Departmental Representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 05 dismissed the miscellaneous application filed by the Revenue by observing as under : "8. We have heard the rival submissions and perused the material available on record. We find that this Tribunal after following the decision of the Special Bench of the Tribunal in the case of Lalsons Enterprises v. Dy. CIT [2004] 82 TTJ (Del)(SB) 1048 : [2004] 89 ITD 25 (Del)(SB) remanded the issue back to the file of the AO and directed him to allow the benefit of netting off of the interest paid only when there is a nexus between the interest paid and interest received. The Special Bench of the Tribunal in the case of Lalsons Enterprises has held so on the basis of the computational provisions wherein as per s. 37 only expenditure incurred for earn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appeals (Civil) 5412/2007 [arising out of SLP (C) No. 5551 of [2007] [reported at [2007] 213 CTR (SC) 425 Ed.] has explained the scope of power of rectification under s. 254(2) of the Act in the following words : "Scope of the power of rectification 12. As stated above, in this case we are concerned with the application under s. 254(2) of the 1961 Act. As stated above, the expression 'rectification of mistake from the record' occurs in s. 154. It also finds place in s. 254(2). The purpose behind enactment of s. 254(2) is based on the fundamental principle that no party appearing before the Tribunal be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledged its mistake, it has accordingly rectified its order. In our view, the High Court was not justified in interfering with the said order. We are not going by the doctrine or concept of inherent power. We are simply proceeding on the basis that if prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake, which had been done in the present case." 8. It would appear that the aforesaid order of the co-ordinate Bench though cited by the assessee in the above fax message but the said decision could not be considered by oversight while passing the order dt. 21st July, 2006. Thus, a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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