TMI Blog2013 (9) TMI 1084X X X X Extracts X X X X X X X X Extracts X X X X ..... eous Application has been filed by the Revenue against the order of this Tribunal in ITA No. 85/PNJ/2012 dt. 8.3.2013 stating therein that following mistakes of fact are noticed in the order of this Tribunal. 1. On Page No. 135 of the ITAT order it is mentioned that in view of decision of Supreme Court in the case of Chowgule Company, It can be held that the assessee is engaged in these units (EOU units) in 'manufacturing'. Similarly, on Page No. 138, Para No. 43.10 of ITAT order it was held that Hon'ble Supreme Court in the said judgment (in the case of Chowgule Company Pvt. Ltd.) did not consider the expression manufacture since the question was decided only on the expression processing. Based on this judgment, definition of manufacture under Section 2(29B) and other decisions the ITAT concluded that the assessee is entitled for 10(B) deduction. The ITAT made a mistake in holding that processing by the EOUs resulted into a new article or thing which is contrary to the findings of the Hon'ble Supreme Court judgment in the case of Chowgule Company. The Supreme Court in the case of Chowgule Company clearly held that blending of different qualities of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there was blending of iron ore of various grades in the EOU units. Plant machinery in EOU does not have any mechanical blending machinery. ITAT, therefore, wrongly applied the ratio of the cases of Tata Tea Madhu Jayanti and hence the findings of the ITAT requires to be rectified. 4. ITAT erroneously presumed dismantling of the old plant whereas no such claim was made before lower authorities. 5. In applying open market rate of ROM for the purpose of 10B(7) r.w.s. 801A(8), ITAT, restricted the AO to the assessee's average rate whereas some of the purchase of the assessee are not at arm's length price . The application was fixed for hearing. Both the parties were heard. 2. The ld. DR vehemently contended on the basis of the Miscellaneous Application that mistake has crept into the order of this Tribunal. This Tribunal has mis-interpreted the decision of the Hon'ble Supreme Court in the case of Chowgule Co. (P) Ltd. vs. UOI (1981) 1 SCC 653. There the issue was blending of different qualities of ore possessing different chemical and physical composition while in the case of the Assessee, the Assessee was processing the crude ore and therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A). In respect of Ground no. 5, it was submitted that the Tribunal has given a finding of fact for working the average rate and there is no mistake of facts involved. Before us, a paper book was filed showing the application being filed by the revenue before the Tribunal and it was pointed that all the points taken in the Miscellaneous Application have been taken by the Revenue before the Hon'ble High Court. It was vehemently contended that the Hon'ble Supreme Court in the case of Chowgule Co. (P) Ltd. vs. UOI (1981) 1 SCC 653, as applied by the ITAT, has accepted that there is a change in the mechanical composition after processing of the iron ore in the above case. In that case, even it was held therein that even the blending of ore for the purpose of exports involved change in the mechanical and physical composition of the iron ore. The activities of the units at Amona and Chitradurga involved converting input (ROM) into output (lumps and fines) by crushing, screening, washing, stacking, loading in barges, river transport to boat and export in ships. Finished product after processing technically had different name i.e. lumps and fines. From the physical samples it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Tata Communications Ltd. vs. JCIT, 317 ITR 1 has clearly held that when the question is pending before the Hon'ble High Court, it is not right for the Assessee to agitate the same or part of the question before the Tribunal. Reliance was also placed in this regard on the various other decisions : Sudhakar M. Shetty vs. ACIT, 139 TTJ 687 ITO vs. Chitra Khanna, MA 417/Mum/2010 Ornate Traders (P) Ltd. vs. JCIT, 2008 24 SOT 125 Rolta India Ltd. vs. JCIT, MA/490/M/06 Royal Antibiotics Investment vs. ITO, MA 795/Mum/2009 Bayer CorpScience vs ACIT, MA 190/Mum/2010 CIT vs Simoni Gems, MA 240/Mum/2010 Dakshata Finance Investment vs ITO, MA 705/Mum/2009 ACIT vs GTL Ltd., MA 746/Mum/2009 ACIT vs Safe Enterprises, 9 ITR (Trib) 533 137 TTJ 573 4. We have carefully considered the rival submissions, perused the matter on record. We have also gone through the various case laws. It is a fact that in this case the Revenue has gone in appeal before the Hon'ble High Court and the same very question which has been taken in the Miscellaneous Application are before the Hon'ble High Court. This has not been denied by the ld. DR, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by it u/s 254(1) with a view to rectify any mistake apparent from the record either suo moto or on application by the Assessee or the Revenue. Even without such specific provision, this Tribunal has inherent power to rectify the mistake apparent on record. However, the inherent power to rectify a wrong committed by itself by the Tribunal is not a power to review, which is a creature of the statute. The statute does not empower the Tribunal to review its order. The Tribunal can exercise the jurisdiction u/s 254(2) if there is a mistake apparent on record within the four corners of the said provision. The main question, therefore, is what is the mistake apparent from record ? Similarly, the expression error apparent on the face of the record came up for consideration before the courts while exercising certiorari jurisdiction under article 32 and 226 of the Constitution. In T.S. Balaram, ITO vs. Volkart Brothers, 2 SCC 526 it was held that any mistake apparent from 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‟. It was, however, conceded in all leading cases that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident and if it can be established, it has to be established by lengthy and complicated arguments. We do not think such an error can be cured by writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. The Hon'ble Supreme Court in the case of Udhavdas Kewalram vs Commissioner of Income-Tax, 66 ITR 462 held that the Tribunal must, in deciding the appeal, consider with due care all the material facts and record its finding and all the contentions raised by the Assessee and Revenue in the light of the evidence and relevant law. The decision has to be made only on the basis of the facts involved therein. The word record‟, in our opinion, means the entire record consisting of not only grounds of appeal and the case laws relied on and referred to before the Tribunal, but also the contentions, pleas and arguments raised by the parties before the Tribunal. The word record‟ has not been defined u/s 254(2) or u/s 2 of the Income Tax Act so as to restrict its meaning only to the grounds of appeal decided in the order of the Tribunal. The provisions of Sec. 254(2) could not be constituted in a manner that produces an anoma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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