TMI Blog1993 (3) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... and ending on30-6-1980. Section 80J(4) of the Act, prohibits allowing of deduction for any unit, which manufactures articles prescribed in the Eleventh Schedule, if the manufacturing commences after1-4-1979. Therefore, the assessee, could not have been allowed deduction under section 80J for this Kiln No. 4, and is clearly a glaring mistake, apparent from the record. 2. Shri C.S. Agarwal, the learned counsel for the respondent-company, raised a preliminary objection. He pleaded that, the petition could not be proceeded with, but, has to be dismissed as barred by limitation. He pleaded that, according to section 254(2) of the Act, the Tribunal has the power to rectify an order for any mistake contained therein, within a period of four yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s seeking time for filing of the applications. 4. We have given our very careful considerations to the rival submissions on this preliminary objection. The application for rectification was filed with the Registry on16-11-1992, stated to be arising from the order of the Tribunal, dated30-12-1988. According to section 254(2) of the Act, the rectification application, should have been disposed of by the Tribunal, by30-12-1992. The Registry, had fixed it for the first time for hearing the parties, only on8-1-1993. The revenue had sought adjournment on8-1-1993on the ground that, it needs to obtain some clarifications from its Commissioner and the hearing of the application was adjourned to15-1-1993. The revenue sought adjournment, for the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) of the Act, because the Act states that, that the order could be rectified within four years from the date of the order. Therefore, we have to hold that, the Tribunal could dispose of the application on8-1-1993, when the application had come up for hearing for the first time. Besides, the adjournments having been granted by this court, and allowing the application to remain pending, the duty that is cast upon this Court, of disposing of the application on merits, has to be necessarily performed. Hence, we have to hold that, the application, could still be disposed of by the Tribunal and rather it has no other alternative but, to consider the application, on its merits and dispose it of on that count. We accordingly reject the preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it had objected to the grant of deduction under section 80J of the Act, which would cover all the aspects, which govern its allowance. This is apparent on the face of the Assessing Officer's order, and for the sake of facility. the relevant observation, has been reproduced below: "The assessee has made a claim for deduction under section 80J in its letter dated29-10-1983. No such claim was made by the assessee during the course of assessment proceedings on29-10-1983. The claim of relief of Rs. 1,79,703 was made by the assessee on the ground that three Glost Kilns No. 2 (started during the assessment year 1979- 80), No. 3 (started during assessment year 1978-79) and No. 4 (started during this year) are separate industrial undertakings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts operation after1-4-1979and hence, sub-section (4) of section 80J was clearly attracted. The omission to apply a particular provision of law, which is mandatory, is clearly an error and is capable of being rectified. It does not require any investigation, into the matter, that, the article as is manufactured by the assessee, is one that is covered by the Eleventh Schedule and the units, if established up to31-3-1979alone, are entitled to deduction under section 80J of the Act. Furthermore, the order was plainly and obviously inconsistent with the provisions of the law and has thus given raise to a mistake apparent from the record. Such mistakes are capable of being rectified and this has the sanction of the Supreme Court, as has been so h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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