TMI Blog2012 (5) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... K. GARODIA, ACCOUNTANT MEMBER For the Appellant by: Shri J P Shah, AR For the Respondent by: Shri B L Yadav, Sr. DR O R D E R PER SHRI A. K. GARODIA, AM:- 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 received on 19.05.2008 (Annexure-A) begs to submit this Miscellaneous Application under sec.254(2) of the I.T. Act for the kind consideration of the Hon'ble Members of Bench 'D'. 3. One of the points for adjudication b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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% thereof is ₹ 2,92,24,180/- and therefore, the value of the machinery and plant previously used is ₹ 14,47,600/- and does not exceed 20% of the total value of the machinery and plant of ₹ 14,46,44,295/- equal to ₹ 2,92,24,180/-. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 20%. 6. The assessee most humbly submits that the order of the Tribunal thus suffers from an apparent error which has resulted into injustice to the assessee. The assessee further, most humbly prays that the above apparent error be kindly rectified and justice be done to the assessee, for which act of kindness the assessee shall for ever pray and remain grateful. 2. In the course of hearing before us of the miscellaneous application, it was submitted by the Ld. A.R. that as per the judgment of Hon ble Gujarat High Court rendered in the case of Gujarat Alkali and Chemicals Ltd. Vs CIT as reported in 249 TR (Guj.) 82, use by the assessee of the old undertaking for the purpose of production in its new undertaking is not a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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