TMI Blog2014 (10) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... - SUPREME Court] and the Board Circular No.68, dated 17.11.1971, which were very much available before the Tribunal at the time of passing the rectification order - The said fact is also not disputed by the Revenue – Decided against revenue. - T.C. (A). No. 2 of 2004 - - - Dated:- 12-8-2014 - R. Sudhakar And G. M. Akbar Ali,JJ. For the Petitioner : Mr. M. Swaminathan Senior Standing Counsel For the Respondent : Mr. S. Sridhar ORDER (Delivered by R. Sudhakar, J.) The matter is taken up for hearing pursuant to the order of the Supreme Court in Sree Ayyanar Spinning and Weaving Mills Ltd. v. Commissioner of Income-tax, [2008] 171 Taxman 498 (SC), restoring this tax case appeal to file. 2.1. The brief facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified. 2.5. Challenging the said order, the assessee preferred an appeal before the Tribunal, which, by order dated 9.12.1996 made in I.T.A.No.719/Mds/1994, dismissed the appeal upholding the order of the Commissioner of Income Tax (Appeals) on computation of income under Section 115J of the Act. The Tribunal dismissed the appeal on the ground that the profit and loss account of the assessee did not reflect correct picture for the assessment year 1989-1990. 2.6. Thereafter, on 2.8.2000, the assessee filed a miscellaneous petition in M.P.No.40 of 2000 praying to recall and rectify the order by mainly relying upon the decision of the Supreme Court in Surana Steels Pvt. Ltd. v. Deputy Commissioner of Income Tax, [1999] 237 ITR 777. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On this premise, the matter was brought on appeal before this Court on two questions of law as under: 1. Whether in the facts and circumstances of the case, the Tribunal was right in rectifying its order under section 254 of the Income-tax Act, based on a judgment of the Supreme Court rendered six years after the date of the order rectified ? 2. Whether in the facts and circumstances of the case, the Tribunal has the power or jurisdiction to rectify its order beyond the time limit of four years specified under section 254(2) ? and this Court, by order dated 11.12.2006, allowed the appeal filed by the Revenue and held as under: 20. In fine, without going into the merits of the case, we hold that the order passed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well within the time limit prescribed under Section 254(2) of the Act. However, the Supreme Court observed that it was the Tribunal which took its own time to dispose of the miscellaneous petition and, therefore, this Court erred in holding that the miscellaneous petition could not have been entertained by the Tribunal beyond four years. 5. In view of the above finding rendered by the Supreme Court, the second question of law raised before this Court does not survive for our consideration. 6. Now, let us take up the first question of law, whether the Tribunal was justified in relying upon the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, for the purpose of passing the rectification order dated 31.1.2003, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility of depreciation on immovable property, the sale deed of which was not registered till the closing of the year. 8. We are, therefore, of the firm view that the first question of law raised by the Revenue is based on a misconception of fact, as the Tribunal has not only relied upon the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, but also relied on the decision in Surana Steels Pvt. Ltd. case, referred supra, and the Board Circular No.68, dated 17.11.1971, which were very much available before the Tribunal at the time of passing the rectification order. The said fact is also not disputed by the Revenue. 9. In such view of the matter, we answer the first substantial question of law against the Revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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