TMI Blog2012 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... round with regard to the allowability of deduction under section 54F wherein the Tribunal decided the issue against the assessee. 3. The authorized representative submitted that the Tribunal inadvertently not considered the decision of the same Bench in the case of ITO vs. R. Preeta Devi two Others. In that case also the assessee explained that the investment in house property was out of rents received from Satyam Computers,. Security Deposits of the tenants, and loan taken from Karnataka Bank Banjara Hills, Hyderabad. Therefore, it is respectfully submitted that the rationale laid down by the earlier Divisional Bench decision has not been applied by the present Bench, therefore, there is a mistake apparent from the record. 4. He submitted that during the course of assessment proceedings, it was brought to the notice of the assessing officer that the assessee invested up to 31-3-2006, an amount of Rs.1,24,68,800/- and further, an amount of Rs.25,31,200/- was invested before the due date of filing of the return i.e., before 30-6-2006, therefore, an aggregate amount of Rs.1,50,00,000/- was invested before the due date of filing of the return of income and subsequently, an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of the Supreme Court over-ruled that the 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 ano0ther Divisional Bench of co-ordinate jurisdiction but if it differs, the case should be referred to a Full Bench. This procedure would avoid unnecessary conflict and confusion that otherwise would prevail. In the case of JKT Fabrics (P) Limited vs. DCIT 004 SOT 0084 (Mum-Trib), it was held that A decision, which is per incuriam, is not a binding judicial precedent, it is also well-settled that when it is not open to a High Court Bench to differ from the decision of a Bench of equal strength, it cannot also be open to a Bench of the Tribunal to differ from the view taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and towards his capital contribution as managing partner. However, since assessee had availed loan from HDFC bank and constructed house within three years from the date of transfer of the land to the firm, the assessee claimed exemption of capital gains on investment made in the construction of the new building under section 54F. The contention raised by the counsel appearing for the Revenue is that, in order to qualify for exemption under section 54F, the assessee should have purchased house within one year or should have constructed residential house within a period of three years from the date of transfer in either case by utilizing the sale proceeds of land. Further, for qualifying for exemption, the assessee should have, before the date of filing return, deposited the net sale consideration received in a nationalized bank in terms of the section 54F(4) and the receipts should have been produced along with the return filed. The counsel for the assessee on the other hand, contended that in order to qualify for exemption, there is no need to utilize the sale consideration towards the construction cost of the house and it is enough during the period of three years, equivalent amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review conferred on this Tribunal. Even otherwise, the scope of review does not extent to rehearing of the case on merit. It is held in the case of CIT vs. Pearl Woollen Millos (2011) 330 ITR 164/(2010) 191 Taxman 286 (Punj. Har.) Held, that the Tribunal could not re-adjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed. 14. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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