9911796707
TMI Blog2016 (5) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... n A.Y. 2001/02. The Hon'ble ITAT on the basis of above observation then proceeded to dismiss Ground # 2 by the applicant challenging disallowance on page 12 Para 9.1 as follows: "9.1 Since the facts obtaining in the year under consideration are undisputedly similar to the facts obtaining in the preceding assessment year, we have no hesitation in upholding the findings of the learned CIT (A) in the light of the afore said decision of the ITAT in the assessee's own case in A.Y. 2003/04. Therefore ground no. 2 in the assessee's appeal is dismissed" 3. With the assistance of the ld. representatives, we have gone through the record carefully. We find that the Tribunal has recalled its finding on this issue in the Asstt.Year 2001-02 vide order dated 11.5.2012 passed in MA No.324/Ahd/2008 in ITA No.3528/Ahd/2004. The discussion made by the Tribunal reads as under: "This Miscellaneous application is filed by the assessee pointing out certain mistakes in the tribunal order. The contention raised in the miscellaneous application are as under: "1. The applicant being aggrieved by the order passed by the Hon'ble Income Tax Appellate Tribunal, Bench 'D' dated 16.05.2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46,44,295/- equal to Rs. 2,92,24,180/-. Thus, by virtue of the provision of Explanation 2 to section 801A(3) the condition stated in section 80-IA (3)(ii) viz. it is not formed by the transfer to a new business of machinery or plant previously used for any purpose" is complied with. There was no further or other discussion about this point at the time of hearing of the appeal and the learned Departmental Representative merely relied on the order of the A.O. which held that the "new power plant has been established by way of transfer of old and previously used machinery which disqualifies the new power plant from being eligible for deduction u/s. 80-1 A." The Tribunal without any discussion in the open court about the point of expansion held that this was a case of expansion of the existing undertaking. The assessee most humbly submits that in absence of any arguments having been invited from the assessee on this point, it has been denied the right of hearing and the appeal on this point has been decided without hearing the assessee. Further, it is worth appreciating that the A.O. also agrees that a new industrial undertaking has come into existence but he denies 80-IA relief becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the tribunal but when the matter was before Hon'ble Gujarat High Court, it was held by the Hon'ble High Court that only because to a certain extent, the new undertaking is dependent on the existing unit, it will not deprive the new undertaking the status of a separate and distinct identity. It all depends on the nature of the technology and the mechanism of production. In view of this decision of Hon'ble Gujarat High Court which is dated 12.03.2012, it appears to us that the impugned tribunal order is not in line with this subsequent judgment of Hon'ble Gujarat High Court rendered in the case of Gujarat Alkali & Chemicals (supra). As per the judgment of Hon'ble Apex Court rendered in the case of ACIT Vs Saurashtsra Kutch Stock Exchange Ltd., as reported in 305 ITR 227, if the tribunal decision is not in line with the subsequent judgment of Hon'ble Jurisdictional High Court or of Hon'ble Apex Court, it amounts to an apparent mistake in the tribunal order. Hence, in our considered opinion, there is an apparent mistake in the impugned Tribunal order because the same appears to be not in line with the subsequent judgment of Hon'ble Gujarat High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v CIT @ 342 ITR 49 (SQ taking a view that not the entire sale proceeds of DEPB license is to be excluded from the profits of the business for computing deduction u/s 80HHC of the Act but only the profit arising out of sale of DEPB license is to be excluded for computing the deduction. It is respectfully submitted that in light of the reversal of the judgment relied upon by the Hon'ble ITAT for dismissing the ground # 4 to 8 of the applicant's appeal, it constitutes mistake apparent on record that deserves to be modified and the ground # 4 to 8 be allowed in larger interest of justice. 9. The applicant most respectfully submits that in light of the above mentioned judgment, there is error apparent in the impugned order, as held by the apex court in CIT v Saurashtra Kutch Stock Exchange Ltd.(305 ITR 227) that Non - Consideration of a judgment of the Apex Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order pronounced to be rectified, therefore the order of the Hon'ble ITAT requires to be modified so as the claim of the applicant be appreciated with correct facts." 6. With the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
