TMI Blog2005 (11) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 2004 when the order was finally passed which is also the date of retirement of the Accountant Member, Mr. Wakharkar, who was one of the members hearing the appeal. He also invited our attention to the administrative instructions dated 19-3-2003 issued by the President, ITAT, which states that appeal should be disposed of in the month following the month in which appeal is heard. Then Mr. Mistry, ld. counsel for assessee, submitted that such instructions are in consonance with the binding principles laid down by the Apex Court in the case of Anil Rai v. State of Bihar (2001) 7 SCC 318, copy of which is placed on record. According to him, the impugned order must be recalled for fresh hearing as it is not in consonance with the binding guidelines issued by the Apex Court as well as the head of the Institution and consequently bad in law. He also placed on record the copy of the order of Tribunal in the case of Asia Vision dated 17-7-2003 where, on similar facts, the Tribunal recalled its order. In view of the above submission, it is prayed that the impugned order be recalled for fresh hearing. 3. In our opinion, the above submission and the prayer sought are untenable and beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the parties of the said list shall be entitled to move an application before the Chief Justice of the High Court with a prayer to withdraw the said case and to make it over to any other Bench for fresh arguments. It is open to the Chief Justice to grant the said prayer or to pass any other order as he deems fit in the circumstances. A perusal of above guidelines shows that the same were issued to ensure speedy justice to the litigants. Litigants are also allowed to file application in the court with prayer for early judgment or for withdrawing the case from the said Bench and make it to other Bench for fresh arguments. But the guidelines stop there and does not speak about the validity of order if the order is passed even belatedly. It provides the litigations also to be vigilant and report the delay to the administrative head of the judicial system. They also cannot be permitted to abuse the process of law. If there was delay then why the assessee kept mum and did not move the application to the administrative head to intervene in the light of the said guidelines. If the judgment goes in favour of a party then it does not complain but makes a hue and cry if such judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... argued is not dealt with in the order, in the manner mentioned above. 6. In view of the above discussion, we don t find merit in the submission of the assessee s counsel and therefore, the same is rejected. 7. The next mistake, according to the applicant, is that the Tribunal failed to consider the main contention of the assessee that there cannot be levy of interest under section 234B of the Act unless there is default in payment of advance tax. Since tax at source was deductible under section 195 against payment on sale of shares, assessee was not required to pay advance tax under section 209(1) (d) of the Act and consequently no interest could be charged under section 234B. According to Mr. Mistry, the ld. counsel for assessee, the assessee had relied on various decisions of Tribunal and judgment of Madras High Court in support of the above contention but the Tribunal failed to consider the said contention in the light of various decisions. He also drew our attention to para 11 of the impugned order to contend that Tribunal decided the issue on the basis of Supreme Court judgment in the case of CIT v. Anjum M.H. Ghaswala (2001) 252 ITR 11 , which has no relevance to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The judgment of Madras High Court in CIT v. Madras Fertilizers Ltd. (1984) 149 ITR 7031 was delivered on the basis of the provisions of section 215(5) which defined assessed tax as the tax determined on the basis of regular assessment reduced by the amount of tax deductible under various provisions. It is, because of such provisions, Their Lordships held that tax deductible was to be reduced before levying interest under section 215 or 217 of the Act. However, Explanation I to section 234B defines assessed tax as tax on the total income determined under section 143(1) or on regular assessment as reduced by the amount of tax deducted or collected at source in accordance with provisions of Chapter XVII. So there is material change in language of section 215(5) and section 234B read with Explanation I of the Act. The change is deliberate and consequently case law delivered on the basis of old provisions may not be relevant regarding issue of interest under section 234B. 10. Coming to Tribunal decisions, the assessee had relied on following decisions :- 1. Rheinbraun Engg. Wasser GmbH (Mumbai ITAT) Assessment Year 1993-94. 2. Decca Survey Overseas Ltd., Mumbai ITAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the option available to assessee under section 55(2) (b) (i). This right was available to assessee since inception and has never been taken away by the Legislature. According to him, second proviso to section 48 only debars the non-resident from the right of indexation. Thus, the Tribunal has committed a mistake in denying the right available to assessee under section 55(2) (b) (i). 12. In our opinion, this contention of assessee is devoid of any force. The scope of section 254(2) is very limited. It does not permit the Tribunal to review the earlier order as consistently held by various courts. If the submissions raised by assessee have been duly recorded and considered by the Bench in its order and a conscious decision has been taken then it cannot be said that any mistake had been committed by the Tribunal despite the fact such decision may be erroneous in law. Error of judgment, if any, can be corrected by higher courts and not by the Tribunal itself under section 254(2). 13. In the present case, we find that the Tribunal has recorded all the arguments of assessee s counsel in para 5 of the order (pages 7 to 9). It is also not the case of assessee that arguments were n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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