TMI Blog2008 (2) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... aint India Ltd. vs. CIT (2004) 187 CTR (SC) 198 : (2004) 266 ITR 99 (SC) and by the Hon'ble Delhi High Court in CIT vs. Nestle India Ltd. (2006) 206 CTR (Del) 345 : (2006) 156 Taxman 419 (Del). The assessee also raised a legal contention that s. 43B has overriding effect and, therefore, s. 145A of the Act introduced w.e.f. 1st April, 1999 can have no application to the assessee's case. In support of this legal contention, the assessee placed reliance on an order of the Co-ordinate Bench of the Delhi Benches of the Tribunal in the case of Maruti Udyog Ltd. vs. Dy. CIT (2005) 92 TTJ (Del) 987 : (2005) 92 ITD 119 (Del). The Tribunal sought clarifications from the assessee as to the entries for customs duty made in the P L a/c and balance sheet. In compliance with these directions, the assessee placed detailed written submissions as also the entries passed by it in an attempt to show that the customs duty was included in the closing stock as on 31st March, 2001 and, therefore, the payment made by it should be allowed as a deduction as claimed in the return. It was also submitted by the assessee that its similar claim has been accepted by the IT Department in subsequent years and the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned representative for the assessee, the Tribunal having accepted the assessee's contention after due scrutiny of the entries made in the P L a/c and balance sheet, that the customs duty has in fact been included in the closing stock, it committed an error apparent from the record when in para 11 of his order it contradicted itself by saying that the customs duty has not been included in the valuation of the closing stock and, therefore, the effect of s. 145A has to be examined by remitting the matter to the AO. According to the learned representative for the assessee, this inherent contradiction is a clear mistake which has caused prejudice to the assessee in the sense that if the assessee has admittedly included the customs duty in the valuation of the closing stock, there is no need to set aside the matter to the AO for examination of the effect of s. 145A which has given rise to multiplicity of proceedings, delaying the finality of the matter, thus causing prejudice to the assessee. It is pointed out that no reasons have been given by the Tribunal as to why the earlier finding in para 10 that the assessee has included the customs duty in the valuation of the closing st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned representative for the assessee, is that the Tribunal completely overlooked the assessee's contention that its claim for deduction of the customs duty under s. 43B of the Act for the subsequent years has been accepted by the AO himself though this was pointed out clearly with facts and figures in para 1.9 of the written submissions filed before the Tribunal. It is submitted that this crucial aspect does not even find place in the Tribunal's order. Our attention is drawn to the order of the Special Bench, Delhi in Asstt. CIT vs. Apollo Tyres Ltd. (2006) 102 TTJ (Del)(SB) 15 where in para 11 it has been held that in not taking note of the submissions of the Revenue, the Tribunal did commit a mistake apparent from the record. It is further pleaded that the rule of consistency is a celebrated rule and ensures certainty in the law and, the Tribunal committed a grave error in not referring to the assessee's contention that the Department has consistently accepted its claim in the subsequent years, showing consistency of conduct. 7. On the other hand, the learned senior Departmental Representative vehemently opposed the miscellaneous application. She drew our attention to para 8 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten submissions as well. The paper book runs into 148 pages and it contains, inter alia and apart from the written submissions, the explanation of the entries made regarding the closing stock to show that the customs duty had been included therein, the audited financial statements as well as para-wise submissions explaining the entries as well as the legal position. This paper book is in addition to an earlier paper book containing 172 pages. In the supplementary paper book filed on 21st Feb., 2007, which was also explained before the Bench on that date with reference to the entries made regarding the customs duty, the assessee has also explained in detail how the provisions of s. 145A introduced w.e.f. 1st April, 1999 can have no effect in view of the overriding provisions of s. 43B. These submissions have been briefly adverted to in para 8 of the order of the Tribunal as also para 10. Para 10 gives the impression that the contention of the assessee that since inception from the asst. yr. 1994-95 till the asst. yr. 2006-07 the assessee has been following the inclusive method of accounting for customs duty payment while valuing the stock was accepted by the Tribunal. It is furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrides s. 145A. This decision was referred to by the Tribunal in para 7 of its order while summarizing the contentions of the Department but unfortunately the Tribunal omitted to deal with this decision and consider its applicability while taking a decision to remit the matter to the AO with a direction to him to examine the applicability of s. 145A. We are in agreement with the submissions of the learned representative for the assessee that this omission has caused prejudice to the assessee in the sense that it has given rise to further proceedings before the AO involving further delay in finalising the assessment proceedings when the legal position already stood concluded by the binding order of the Tribunal in Maruti Udyog Ltd. The assessee will now have to face the entire proceedings again even though by virtue of the order of the Tribunal in the case of Maruti Udyog Ltd. there was no need to do so. This unfortunate state of affairs has resulted because of the mistake committed by the Tribunal in not dealing with the order of the Co-ordinate Bench wl1ich was cited before it. The other mistake committed by the Tribunal to the prejudice of the assessee is its omission to refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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