TMI Blog2016 (5) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ich has explained the position of law, when it was brought on the statute book, resulted an apparent error in the order of the Tribunal, which requires rectification. Therefore, we recall the finding of the Tribunal on ground no.3 also, and restore this ground for adjudication afresh. - Misc. Application No.157/Ahd/2012, ITA No.1547/Ahd/2007 - - - Dated:- 30-3-2016 - SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI RAJPAL YADAV, JUDICIAL MEMBER For The Assessee : Shri S.N. Soparkar, AR For The Revenue : Shri Dinesh Singh, Sr.DR ORDER PER RAJPAL YADAV, JUDICIAL MEMBER: The present Misc. Application is directed at the instance of the assessee pointing out apparent error in the order of the Tribunal dated 24.9.2010 passed in ITA No.1547/Ahd/2007 for the Asstt.Year 2004-05. 2. The assessee has pointed out two apparent errors in the order of the Tribunal. With regard to first error, the assessee has pleaded as under: The Hon'ble ITAT noted at Page 7 Para 8 of the impugned order that both the parties agreed that the issue was squarely covered against the applicant by the decision dated 24/07/2009 of the ITAT Ahmedabad Bench 'D' in the assessee' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the profits of the new industrial undertakings eligible for deduction u/s. 80-IA. In other words, A.O. was of the view that as the new power plant was getting the steam from already existing boiler, it is established by the transfer of old and previously used machinery and therefore, disqualifies the assessee for 80-IA relief. On appeal, Commissioner of Income-Tax (Appeals) agreed with the A.O. that the new industrial undertaking has come into existence by transfer of the old boiler. 5. On appeal, by the assessee, the assessee's counsel merely contended before the Tribunal that on the basis of the figures given by the A.O. in his assessment order even if the boiler is to be considered to be a part of new power plant even then the value of the old machinery and the boiler is not more than 20% of the total value of the machinery and plant used in the business. The assessee's counsel relied on the figures given by the A.O. himself at page 48 49 of his assessment order, according to which ₹ 14,47,600/- was the original purchase price of the boiler; whereas total value of the machinery including the above is stated to be ₹ 14,46,44,295/- and 20% there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee of the old undertaking for the purpose of production in its new undertaking is not a decisive test in construing Section 80-1. He further submitted that as per this decision, it was held by the Hon'ble Gujarat High Court that new undertaking must not be substantially the same old business and there should be substantial investment of new capital is imperative. He further submitted that this judgment of Hon'ble Gujarat High Court is squarely applicable in the present case and hence, the issue in dispute should be decided in the light of this judgment of Hon'ble jurisdictional High Court. 3. As against this, it was submitted by the Ld. D.R. that there is no apparent mistake in the tribunal order because a clear finding is given by the tribunal that there is merely an expansion of industrial undertaking and the new undertaking must be independent of existing unit and it should be able to carry out activities independently and, therefore, there is no apparent mistake in the Tribunal order. 4. We have considered the rival submissions. We find that in the case of Gujarat Alkali Chemicals (supra) also, the substantial expansion was carried out by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this year apparent error has crept in the order of the Tribunal dated 24.9.2010, because the Tribunal has not recorded any independent finding on this issue. The basis for adjudicating this ground has been extinguished. Therefore, we recall the order of the Tribunal to this extent as far as the first apparent error pointed out by the assessee is concerned. The finding recorded on ground no.2 of the appeal is recalled and this ground is restored for re-adjudication. 5. With regard to second apparent error, the assessee has made following pleadings. 7. Vide Ground no. 4 to 8 the applicant challenged reduction of profits of the business by sale proceeds of DEPB license while computing deduction u/s 80HHC of the Act. The Hon'ble ITAT in Para 16 on page 16 observed that the decision of Special Bench in Topman Exports, 318 ITR (AT) 87 (Mum) taking a view that only profits arising from sale of DEPB license were to be considered for purposes of s. 80 HHC of the Act stood reversed by the Hon'ble Bombay High Court in CIT vs Kalpataru Colours Chemicals (2010) 233 CTR 313. With this observation the Hon'ble ITAT proceeded to dismiss the above grounds 4 to 8 as per Para 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and effect of the words used by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the promulgation of the law. The declaration is - This was the law. This is the law. This is how the provision shall be construed. The Hon ble Supreme Court has declared the law on the issue regarding exclusion or inclusion of value of DEPB licence on its sale for computing the deduction under section 80HHC. According to the Hon ble Supreme Court, the entire sale proceeds of DEPB licence is not to be excluded from the profit of the business for computing deduction under section 80HHC, but only profit arising out of the sale of the DEPB licence is to be excluded. Therefore, in view of subsequent decision of the Hon ble Supreme Court, which has explained the position of law, when it was brought on the statute book, resulted an apparent error in the order of the Tribunal, which requires rectification. Therefore, we recall the finding of the Tribunal on ground no.3 also, and restore this ground for adjudication afresh. 8. In the result, the Misc. Application of the assessee is allowed. Order pronounce ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
