TMI Blog2005 (4) TMI 515X X X X Extracts X X X X X X X X Extracts X X X X ..... w in favour of the revenue, and urges us to follow the same. Our attention is invited to Tribunal s decision in the case of Prince SWR Systems (P.) Ltd. v. Dy. CIT [IT Appeal No. 2811 (Mum.) of 2004, dated 10-9-2004], and to Tribunal s decision in the case of ITO v. Venus Jewels [IT Appeal No. 3842 (Mum.) of 2001, dated 25-10-2004]. 4. We have heard the rival contentions, perused the material on record and duly considered the factual matrix of the case as also the applicable legal position. 5. As far as Tribunal s decision in the case of Prince SWR Systems (P.) Ltd. s case ( supra ) is concerned, we have noted that the Tribunal has not followed the co-ordinate bench decision in Plastiblend India Ltd. s case ( supra ) and has decided the case against the assessee by following the Bombay High Court judgment in the case of Indian Rayon Corpn. Ltd. v. CIT [2003] 261 ITR 98 1 . What is missed out, however, is the fact that in Plastiblend India Ltd. s case ( supra ) the co-ordinate bench had duly considered Indian Rayon Corpn. s case ( supra ) and then came to the conclusion that Indian Rayon Corpn. s case ( supra ) decision has no bearing on the question b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has come to the conclusion that where the assessee has not claimed the depreciation in its books of account, the same cannot be thrust upon the assessee for the purpose of computing the deduction under section 80-IA. Following the Hon ble Supreme Court s judgment in Paras Laminates (P.) Ltd. s case ( supra ), it was not open to the bench to take any other view of the matter than the view taken by the co-ordinate bench. The decision in Venus Jewels case ( supra ) also appears to be per incuriam . 7. No doubt that when a co-ordinate bench doubts the correctness of decision of another co-ordinate bench, a reference can be made to the Hon ble President for constitution of a larger bench. However, as far as the issue before us is concerned, a request for constitution of larger bench was already been turned down. We see no necessity to make yet another request considering that Hon ble President has, in a considered decision, turned down earlier request to that effect. In our opinion, the issue does not call for a re-consideration at this stage. 8. As to what should be the binding effect of a per incuriam decision, we an do no better than to quote the Hon ble Andhra Prade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d uniformity in the administration of justice. If he refuses to follow it, he cannot overrule it; both decision stand and the resulting antimony must wait for a higher court to settle. The principles applicable to courts in India were laid down by Subba Rao, J. (as he then was) in Dr. K.C. Nambiar v. State of Madras AIR 1953 Madras 351, which were approved by a Full Bench of our High Court in Subbarayudu v. The State AIR 1955 AP 87 (FB)/[1955] II ALT (Cri) 53. They are as follows (at page 94 of AIR 1955 AP) : A single judge is bound by a decision of a Division Bench exercising appellate jurisdiction. If there is a conflict of Bench decisions, he should refer the case to a Bench of two judges who may refer it to a Full Bench. A single judge cannot differ from a Division Bench unless a Full Bench or the Supreme Court overruled that decision specifically or laid down a different law on the same point. But he cannot ignore a Bench decision, as I am asked to do on the ground that some observations of the Supreme Court made in different context might indicate a different line of reasoning. A Division Bench must ordinarily respect another Divisional Bench of co-ordinate juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the terms of a statute or rule having statutory force. In Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court [1990] 3 SCC 682/[1990] 77 FJR 17 (SC) the Supreme Court explained the expression per incuriam thus (at page 36 of 77 FJR) : The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court. As has been noticed above, a judgment can be said to be per incuriam if it is rendered in ignorance or forgetfulness of the provisions of a statute or a rule having statutory force or a binding authority. But, if the provision of the Act was noticed and considered before the conclusion arrived at, on the ground that it has erroneously reached the conclusion the judgment cannot be ignored as being per incuriam . In Salmond on Jurisprudence , Twelfth Edition, at page 151, the rule is stated as follows : The mere fact that (as is contended), the earlier court misconstrued a statute, or ignored a rule of construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t also be open to a bench of this Tribunal to differ from the view taken by a co-ordinate bench of equal strength. The only option in case one doubts the correctness of such a decision is to refer the matter for constitution of a larger Bench. A decision ignoring this rule of precedent, which is duly approved by the Hon ble Courts from time-to- time, cannot but be viewed as per incuriam . Therefore, following the Hon ble AP High Court Full Bench decision in the case of B.R. Constructions ( supra ), such a decision of the co-ordinate bench was of no precedence value. 10. For the reasons aforesaid, we are of the considered view that, what appear to be per incuriam decisions, orders passed by the co-ordinate benches in the case of Prince SWR Systems (P.) Ltd. ( supra ) and to Tribunal s decision in the case of Venus Jewels ( supra ) do not constitute binding judicial precedents. Accordingly, following Hon ble AP Full Bench judgment in the case of B.R. Constructions ( supra ), we decline to be guided by the same. In any case, larger Bench request has already been turned down, and, accordingly, the only option open to us is to follow the co-ordinate bench decision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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