TMI Blog1996 (2) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in its appellate order. However, the Tribunal has not considered another order of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries [IT Appeal No. 4046(Bom.) of 1982] for the assessment year 1977-78. According to him the Tribunal has also not considered some other decisions. It is true that the decision of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries has not been considered though that decision is also on the identical issue as involved in the case of Marshall Poultry Farm and other assessees. The Bombay Bench has held in all those decisions that the sheds in which the poultry farm is being run and eggs are hatched are to be treated as plants. 4. Shri Gadgil contended that not considering the decision of the Bombay Bench of the Tribunal in the case of Deccan Poultry Industries is a mistake apparent on the face of the order of the Tribunal. According to him, the second mistake is in arriving to a conclusion on the basis of the facts narrated by the Tribunal itself. He has pointed the facts narrated by the Tribunal in para 8 of its order dated 27-1-1993. The said facts are reproduced herein for the sake of correct con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it a plant. The Tribunal observed that they are not hatched in special cages and this is also a mistake apparent because there are several cages and the observation is erroneous. He has also contended that the conclusion reached by the Tribunal is vague and in general because it cannot be said that hatching cannot be done without poultry farms or sheds. According to him what the assessee is doing is production on mass scale and therefore, hatcheries are specially designed to achieve that purpose in the villages. The production is not taken on mass scale and for this reason also according to him, the comparison is not correct. 6. Shri Gadgil has submitted that the sheds and environmental control of cages are specifically designed. He has pointed out another mistake in stating that it does not mean a "new article or thing is manufactured". He has pointed out that the Tribunal got confused on the issue as regards manufacture of new thing or any contradiction of concept of plant. The idea and concept of investment allowance for manufacturing of new article or thing was not there as well as what the issue before the Tribunal was a question of depreciation by treating the hatcheries bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nflict between facts narrated in para 8 of the order of the Tribunal vis-a-vis the facts stated in para 13 of the order of the Tribunal. Another plea taken was that certain decisions of the Tribunal, Bombay Bench cited at the Bench were not duly considered and taken into account. A perusal of the impugned order of the Tribunal would clearly show that the observations made by the Tribunal in para 8 of its order were nothing but the arguments advanced by the learned counsel for the assessee. Similarly, the alleged observations of the Tribunal contained in para 13 of its order alleged to be in conflict with or contrary to the facts observed by the Tribunal in para 8 of its order are nothing but the arguments made by the learned departmental representative in support of his case. Thus it is crystal clear that while para 8 of the order of the Tribunal contains the pleadings of the learned counsel for the assessee, para 13 contains the arguments of the learned departmental representative. In para 14, the Tribunal has given a categorical finding of its conclusion based on the facts of the case, arguments advanced by the parties coupled with the case law cited by both sides to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lid. On a reference made by the revenue questioning the jurisdiction of the Tribunal in allowing relief to the assessee in the guise of rectification of mistake, the High Court held that as no reference had been made by the Tribunal while disposing of the appeal to the judgment of Dhadi Sahu's case because the same has not been placed before it for consideration and when the assessee filed application before the Tribunal to review its decision by applying the principle in the aforesaid judgment, it was not an application for rectification u/s 254(2) but was one for review. Therefore, the High Court held that the Tribunal exceeded its jurisdiction when it reviewed its earlier decision purporting to act under sec. 254(2) and the Tribunal was not competent to reverse its final decision in exercise of the powers u/s 254(2). 4. The Supreme Court in the case of Patel Narshi Thakershi v. Pradymansinghji Arjunsinghji AIR 1970 SC 1273 ruled that power of review is not an inherent power. It is also necessary to refer to the judgment of the Calcutta High Court in the case of Shew Paper Exchange v. ITO [1974] 93 ITR 186 which is a reverse case. In that case, the findings of the Tribunal were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal, Bombay Bench were not considered which if considered would have resulted in the relief sought by the applicant is also not maintainable for the simple reason that the Tribunal in para 14 has clearly stated that even the case laws cited by both the sides were duly taken into account which includes the decisions of the Tribunal, Bombay Bench now sought to be applied by the petitioner. Thus, the miscellaneous petition deserves to be rejected outright and the conclusion of the Tribunal contained in para 14 of its order dated 27-1-1993 deserves to be maintained. 6. In the result, the miscellaneous application is rejected and the conclusion of the Tribunal stands. REFERENCE UNDER SEC. 255(4) OF THE INCOME- TAX ACT, 1961 As we have differed in our conclusion, the following questions are referred for decision by Third Member, viz : "1. Whether in the facts and in the circumstances of the case, there are any mistakes apparent from the record so as to invoke the provision of sec. 254(2) of the Income Tax Act, 1961? 2. Whether in the facts and in the circumstances of the case, the Tribunal is competent to take a decision in a miscellaneous application filed u/s 254(2) contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it was pointed out that there was apparent contradiction in paragraph 8 and paragraph 13 of the Tribunal's order. In view of the apparent contradiction in these two paragraphs, the order of the Tribunal suffered with apparent mistake which should be rectified. The assessee further argued before the learned Members that certain judicial decisions of the Bombay Benches of the Tribunal were not considered by the Tribunal, as a result of which an apparent mistake crept in the appellate order of the Tribunal. Non-consideration of the judicial decisions cited by the assessee resulted in the apparent mistake which, the assessee pleaded, should be rectified. 5. It was also pleaded before the learned Members that in the Tribunal wanted to disagree with the decisions of the Bombay Benches of the Tribunal, the matter may have been referred to the Special Bench. 6. The order in the miscellaneous application was proposed by the learned Judicial Member. The learned Judicial Member had mentioned that in deciding the appeal the Tribunal had considered the decision of the Bombay Tribunal in the case of Marshall Poultry Farm only. The learned Judicial Member conceded that the assessee had also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Member, therefore, was of the view that there was no mistake apparent from record which could be rectified u/s 254(2) of the Income-tax Act. Thus, he differed with the findings of the learned Judicial Member. 9. As stated above, I have been nominated as the Third Member to resolve the difference. An opportunity of being heard was allowed to the parties to the dispute. On behalf of the assessee, the learned advocate Shri F.B. Andhyarujina contended and argued that the plain reading of the order of the Tribunal would indicate that there was a mistake apparent from record within the meaning of sec. 254(2) of the Income-tax Act. During the course of the arguments, the assessee had cited the decision of Marshall Poultry Farm's case which has been referred to by the Tribunal in its order. In addition, the assessee had cited the decision of Deccan Poultry Industries' case and some other decisions in which it was held that poultry building was a plant and the assessee doing poultry business was entitled to higher rate of depreciation at 331/3%. The Tribunal had referred only to Marshall Poultry Farm and failed to discuss or distinguish the other decisions cited by the assessee. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that paragraph 14 of the appellate order of the Tribunal is not a speaking order and does not deal with the issue exhaustively. A non-speaking order, in the opinion of the learned counsel, also amounts to a mistake apparent from record. 14. The learned counsel has also taken me through the dissenting orders of the learned Judicial Member and the learned Accountant Member. In his view, the learned Accountant Member has not properly appreciated the facts of the case and, in fact, has confused the issues. Paragraph 8 and paragraph 13 of the appellate order do not contain the pleadings of the assessee and the department respectively. In the opinion of the learned counsel, paragraph 8 of the appellate order of the Tribunal contained the finding of the fact recorded by the Tribunal. After recording such a finding of fact, the Tribunal could not have come to any other decision, except to hold that the poultry building was a plant. Thus, there is an apparent contradiction between the finding of fact recorded by the Tribunal and the conclusion arrived at from such facts. The learned counsel thus pleaded that there is an apparent mistake in the appellate order of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether with that asset he carries on the trade as opposed to the place where and the setting in which the trade was carried on. In the case of the assessee, the building is only the setting and, therefore, cannot be treated as an apparatus for earning the profit. In such a situation, the poultry building cannot be considered as the plant and, therefore, the depreciation at normal rate allowed to it was justified in law. To this extent also, there was no mistake apparent from record which could be rectified. In this regard, the learned senior departmental representative has placed reliance on the decision of the Bombay High Court in the case of CIT v. Sandvik Asia Ltd. [1983] 144 ITR 585, S.P. Jaiswal Estates (P.) Ltd. v. CIT (No. 2) [1994] 209 ITR 307 (Cal.), and Santosh Enterprises v. CIT [1993] 200 ITR 353 (Kar.). 18. Dr. Sunil Pathak continued and argued that whether a poultry building is a plant or not could possibly have alternative points of view. One possible view could be that it is a plant and, therefore, entitled to higher rate of depreciation, while the other view could be that it is a building only and is entitled to normal rate of depreciation. If the Tribunal has acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Poultry Farm, Deccan Poultry Industries and others. Non-acceptance of those decisions is in fact a mistake apparent from record which requires rectification. For this proposition, the learned counsel has relied on the decision of the Madras Bench of the Tribunal in the case of Tube Investments of India Ltd. v. ITO [1984] 9 ITD 690 (TM). Finally, the learned counsel pleaded that the law must be definite and certain. The Tribunal, therefore, cannot take one stand in Bombay and quite contrary in Pune. The learned counsel, thus, concluded that the appellate order of the Tribunal suffers from an apparent mistake which requires rectification. 23. I have heard the parties to the dispute and have carefully studied the points of view expressed by my learned brothers. I have also gone through the evidence filed by the assessee before my learned brothers. After a careful persual of the facts of the case and the scrutiny of the evidence before the Tribunal, I am of the opinion that there is no rectifiable mistake in the appellate order of the Tribunal. What is rectifiable u/s 254(2) is a mistake which is apparent. It must be one for the discovery of which no elaborate reasoning or enquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has affected the result of the appeal of the assessee. Even if the decision of Deccan Poultry Industries' case and other decisions were specifically mentioned by the Tribunal, the result would have been the same. If the Tribunal chose not to follow the decision in the case of Marshall Poultry Farm on identical facts, the Tribunal would not have followed the decision in Deccan Poultry Industries case and other similar decisions. The absence of specific mention of the other decisions, therefore, do not constitute, in my view, a mistake apparent from record. 25. It is well-settled that the decision of the Tribunal need not be scrutinised sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal, or, whether some incidental facts which appear on the record have not been noticed by the Tribunal in its judgment. In my view, if on a bare reading of the judgment of the Tribunal, one finds that it has taken into account all relevant material and has also not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with. In my view, it is not necessary for the Tribunal to st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common in a building or a mere structure and therefore, it is submitted to treat the hatcheries as 'plant'. There is a washing room, cold room for keeping of eggs, environmentally controlled building free from bacterias, hatchers and setters (incubators), temperature is controlled in the hatcheries. Thus whole hatchery is specifically designed, scientifically designed to production of one day old chicks without which it is highly impossible for production. Sheds are scientifically and specially designed so as to have feeders, waterers, to control effect of radiation cages are installed, sheds are hygienically erected and temperature controlled ones, broodes to protect them from weather, wild animals and cats. Special lights, wastage chopping and scientific collections are main features of these buildings conducive for production of large number of eggs and chicks on a scientific basis in modern hatcheries. It is impossible for the various equipments such as brooders, cold room, hatchers and setters etc. to junction without specially designed structure. It was argued that the poultry sheds and scientific apparatus are used for carrying on business and these are not stock in trade. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 13 of the Tribunal's appellate order, a careful reading of the order suggests that these may have been the arguments advanced by the learned departmental representative. In any way, this is not the finding of the Tribunal. The finding of the Tribunal is contained only in paragraph 14. The reading of paragraph 14 suggests that all facts and case law from both sides were taken into account by the Tribunal before deciding the issue. As far as reference of the case to the Special Bench is concerned, the learned Judicial Member himself has mentioned that no such request was made by the assessee. Failure to refer a case to the Special Bench, therefore also, in my view, does not constitute a mistake apparent from record. 30. In reply, the learned counsel has put across a position that the appellate order of the Tribunal is binding on other Benches of the Tribunal. The judicial propriety demands that a Bench may consider the decision of the Tribunal on the identical issue and if convinced may follow it. This, however, is conventional only and not mandatory. This may perhaps be an ideal situation, But, in my view, is not practical. In ordinary life, we come across many a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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