TMI Blog2010 (2) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... rya for the Respondent ORDER R.K. Panda: The assessee through this Miscellaneous Application (MA) requests the Tribunal to rectify/recall the grounds of appeal No.2 in assessee's appeal vide I.T.A. No.4379/Mum/2005 on the ground that the order was passed by the Tribunal without considering the correct facts, arguments and distinguishable facts of the case relied on and without considering and discussing the various decisions of the Tribunal, jurisdictional High Court and of the Hon'ble Supreme Court cited before the Tribunal in the shape of written submissions as well as arguments. 2. Facts of the case, in brief, are that the Assessing Officer in the assessment order disallowed marketing know-how expenditure amounting to Rs.2.70 crores treating the same as capital expenditure as against revenue expenditure treated by the assessee on the ground that the same had been incurred in connection with the acquisition of a new line of business. 3. In appeal the CIT(A) following the decision in the case of Jonas Woodhead and Sons (India) Ltd. vs. CIT reported in 224 ITR 342 and the decision of the Hon'ble Madras High Court in the case of CIT vs. W.S. Insulators of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is finding the Tribunal has not at all considered the written note submitted on behalf of the assessee company wherein at page 12 it has been clearly pointed out that the said decision which was also relied on by the CIT(A) is not at all applicable on the facts of the assessee's case since the facts of the assessee company are entirely different. Referring to para 10 of the order of the Tribunal where the Tribunal has relied on the decision of Hon'ble Madras High Court in the case of WS Insulators (India) Ltd. (supra) and in the case of Tamil Nadu Dairy Development Corporation Ltd. vs. CIT reported in 239 ITR 142 and Chelpark Co. Ltd. vs. CIT reported in 191 ITR 249, he submitted that the Tribunal while upholding the finding of the CIT(A) has not considered the contention of the assessee given at page 14 of the written note wherein the various clauses of the MOU were mentioned and the decision of Hon'ble A.P. High Court in the case of Coromandel Fertilizers Ltd. vs. CIT, reported in 148 ITR 546 was relied on. Referring to various decisions as mentioned in the MA, he submitted that the Tribunal while dismissing the ground has not considered and discussed the arguments of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elal reported in 91 ITD 398 (ASR)(TM) he submitted that in the said decision the Tribunal while deciding the appeal has not considered the judgement cited by the assessee which has bearing on point in issue. It was accordingly held appropriate for the Tribunal to recall its order for fresh hearing. Relying on a host of other decisions, as per the MA, he submitted that since the Tribunal has decided the issue on wrong appreciation of facts and without considering the submission of the assessee that the decisions relied on by the CIT(A) are not applicable to the facts of the present case and ignoring the various decisions relied on by the assessee and not relying on the decision of the Hon'ble Supreme Court in full, therefore, a mistake has crept in the order of the Tribunal and hence the order of the Tribunal to this extent should be recalled. 9. The learned DR, on the other hand, submitted that the Tribunal has considered all material facts and decided the issue against the assessee. Therefore, there is no mistake apparent from record so as to recall the order of the Tribunal. It is only assumption by the learned counsel for the assessee. He submitted that the learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " occurs in section 154. It also finds place in section 254(2). The purpose behind the enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its order dated September 10, 2003, allowing the rectification application has given a finding that Samtel Color Ltd. (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
