TMI Blog2003 (12) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... e on spare parts (vide para 49 of the Tribunal's order). 4. After considering the rival submissions we are of the view that there is mistake apparent from record insofar as the Tribunal's finding with regard to provision of Rs. 4,75,458 for leave encashment of permanent employees was concerned. The claim was allowable as per the Supreme Court's decision in the case of Bharat Earth Movers v. CIT[2000] 245 ITR 4281. The decision of the Supreme Court was directly on the issue and as such it was directly applicable to the claim in question. In view of the Supreme Court decision it was not correct to disallow the claim on the basis of the IT A T's order in earlier years. Accordingly, we modify the Tribunal's order dated31-1-2001in this regard and direct the Assessing Officer to allow the provision of Rs. 4,75,458. 5. As regards the other points raised in the misc. application and pressed before us during the hearing as mentioned above, we hold that there was no mistake apparent from record and there is no case for action under section 254(2) of the Act. The assessee by raising these points in the misc. application has in fact tried to obtain review of the order which is not permissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been committed by the Tribunal while-issuing the directions regarding verification of method of accounting. In my concerned opinion, there is substance in the submissions of learned counsel for the assessee. Initially, there was a dispute as to whether outstanding liabilities of sales-tax could be allowed as deduction in view of section 43B. In order to remove the hardship causing to the assessee, the legislature inserted the proviso to section 43B by Finance Act, 1987 which allowed deduction if such liability was discharged on or before the due date of filing income-tax return. This proviso was held to be retrospective by the Hon'ble Supreme Court in the case of Allied Motors (P.) Ltd. (supra). In view of this finding and declaration of law, the claim of assessee has to be allowed if sales-tax liability outstanding at the end of the year is discharged by assessee before the due date of filing of income-tax return irrespective of the method of accounting adopted by the assessee. This judgment of Supreme Court was cited before the Tribunal as is apparent from the noting made by the then members on the grounds of appeal filed by assessee. Perhaps, while dictating the order, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther appeal, it was submitted before the Tribunal that the issue was covered by the decision of Special Bench in the case of ITOv. Food Specialtties Ltd. [1994] 49 ITD 21 wherein such method was held to be in accordance with the provisions of section 43B and deduction under section 43B was accordingly allowable. The counsel further states that he wanted to explain the same with regard to the facts on record but the Bench observed that there was no need to argue further. However, the claim of assessee has been disallowed by upholding the order of the CIT(A) videPara26 which has already been quoted. It has been pleaded before us that Tribunal, by inadvertence, failed to follow the said decision and, therefore the Tribunal committed a mistake apparent from the record. 10. In my considered view, there is substance in the pleadings of learned counsel for assessee. The perusal of appeal record shows that both the members of the Tribunal, who heard the assessee's appeal had noted citation of Special Bench decision against Ground No.6. One of the members has also noted as .covered". So the fact which emerges from the record is that said decision of Special Bench was cited before and note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same with regard to the facts on record but the Bench observed that there was no need to argue further. However, the claim of assessee has been disallowed by upholding the order of the CIT(A) videPara26 which has already been quoted. It has been pleaded before us that Tribunal, by inadvertence, failed to follow the said decision and, therefore the Tribunal committed a mistake apparent from the record. 10. In my considered view, there is substance in the pleadings of learned counsel for assessee. The perusal of appeal record shows that both the members of the Tribunal, who heard the assessee's appeal had noted citation of Special Bench decision against Ground No.6. One of the members has also noted as "covered". So the fact which emerges from the record is that said decision of Special Bench was cited before and noted by the Bench. I have gone through the paper book filed by the assessee and facts recorded in the case before Special Bench. It is found that in both the cases, assessment year is same and facts regarding this issue are identical. In the present case, the auditors had a note No. 11 to their report which is identical with the note given by the auditors in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Bench. According to judicial discipline, the cases of Special Bench is binding on all Benches unless contrary view is expressed by the jurisdictional High Court or Supreme Court. Till date, there is no contrary decision of jurisdictional High Court. Therefore, in my considered opinion, an apparent mistake within the ambit of section 254(2) has been committed by the Tribunal since the finding of the Tribunal is contrary to finding of Special Bench. Accordingly, the same has to be rectified. Therefore, following the Special Bench decision in the case of Food Specialities Ltd. (supra), I allow the claim of assessee and vacate the finding of Tribunal On this issue recorded in para 26. II. Another mistake pointed out by learned counsel for the assessee is that Ground No. 6( b) relating to disallowance of Rs. 17,17,965 has not been adjudicated by the Tribunal though the same has been noted by the Tribunal in para 23. I find substance in the submission of assessee and hold that mistake was committed by not adjudicating such issue. Accordingly, the order of Tribunal on this issue is recalled for adjudication. 12. Except as stated above, I agree with the rest of the order proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be mentioned that pursuant to the appeal being decided by the Division Bench, the assessee filed an M.A. running into 38 pages but at the time of hearing the counsel sought to press only the points raised in some of the paras (see para 2 of the order of the ld. AM on the M.A.) withdrawing the rest. The ld. Accountant Member vide para 3 of his order on the M.A. referred to a number of items which included the claim for deduction on account of provision for leave encashment amounting to Rs. 4,75,458 but in conclusion he directed the Assessing Officer to allow deduction for the said provision and thereafter in para 5, his observations were to the effect that there was no other mistakes apparent from the record within the meaning of section 254(2) and the assessee in fact had tried to obtain a review of the order and which was not permissible under section 254(2) of the Act. 3. The ld. Judicial Member on the other hand passed a separate order considering some of the issues on which the ld. AM had not given any decision. The subsequent view expressed by the ld. JM was in the direction of rectifying certain mistake which according to him were those apparent from the record and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ld. JM took into account the facts of the case viz., the non-consideration by the Division Bench of the Special Bench decision in the case of Food Specialities Ltd. (supra). In para 10 of his order, the ld. JM took due note of the fact that both the Members constituting the Division bench had noted the citation of the Special Bench decision and in fact one of them had also noted the term, "covered". The ld. JM thereafter proceeded to consider the Special Bench decision and noted at pages 7 and 8 of his order that the facts of the assessee's case were. absolutely identical to those considered by the Special Bench supra. 7. Further, according to the JM the non-consideration of a Special Bench decision constituted a mistake apparent from the record and he, therefore, proceeded to allow the claim of the assessee vacating in the process the finding of the Division Bench recorded in para 26 of its order. 8. The ld. counsel for the assessee vehemently contended before me that the non-consideration of a judgment whether it be of the Special Bench of the Tribunal or the Division Bench of the Tribunal and the judgments of the Hon'ble Supreme Court and High Court cited during the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X
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