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TMI Blog2012 (5) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 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 before the Tribunal was in respect of 80-IA relief claimed for the first time for the income generated from a New Industrial Undertaking by way of a new turbine which generates electricity. 4. The assessee had already one captive power plant of which the turbine and the boiler were principal items. The New Power Plant by way of turbine consumed the steam produced by the above boiler which was a part of old power plant. The A.O. rejected the claim of Sec. 80-IA in respect of new power plant by holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the value of the machinery and plant previously used is Rs. 14,47,600/- and does not exceed 20% of the total value of the machinery and plant of Rs. 14,46,44,295/- 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 disqualifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 decisive test in construing Section 80-I. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hange 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 which is the jurisdictional High Court in the present case, rendered in the case of Gujarat Alkalies & Chemicals Ltd. (supra). In our considered opinion, the tribunal order on this aspect should be recalled and the matter should be decided afresh after hearing both the sides. We order accordingly and direct the registry to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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