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TMI Blog2017 (4) TMI 513X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, had raised the following grounds of appeal before us:- 1."On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in rejecting the A.O's request for rectifying the earlier order passed by the Ld. CIT(A) in spite of the fact that subsequently in a judgment of the Special bench of the Hon'ble Mumbai Tribunal in the assesses own case for A.Y. 2006-07 (ITA No. 5792/M/2009), the Tribunal had held that the commission paid to the directors are not allowable u/s 36(1)(ii) of the Act." 2. "The appellant craves leave to amend or alter any ground or add a new ground which may be necessary." 2. Briefly stated, the facts of the case are that the A.O while framing assessment vide order dated. 19.11.2009 had disallow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, viz. A.Y. 2007-08, was inconsistent with the order passed by the 'Special bench' of the Tribunal in the assesses own case for A.Y. 2006-07, therein sought a rectification of the same by filing an application dated. 29.05.2012 with the CIT(A). The CIT(A) after deliberating on the objections raised by the assessee, rejected the application for rectification filed by the revenue. 5. The revenue being aggrieved with the order of the CIT(A) had thus carried the matter in appeal before us. That during the course of hearing of the appeal the Ld. Authorized representative (for short 'A.R') for the assessee strongly supported the order of the CIT(A) and therein averred that the application filed by the revenue seeking rectification of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBDT Circular No. 68 of 1971, and submitted that the CIT(A) had erred in law by rejecting the application filed by the A.O seeking rectification of the order passed by his predecessor, as a result whereof the order of the CIT(A) was rendered inconsistent with the order passed by the 'Special bench' of the Tribunal in the assesses own case for A.Y. 2006-07. 6. We have heard the authorized representatives of both the parties, perused the orders of the lower authorities and the material placed on our record. We have given a thoughtful consideration to the facts of the case and find that the CIT(A) had allowed the appeal of the assessee for A.Y. 2007-08, vide his order dated. 23.11.2010, by following the earlier orders of the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee for the year under consideration, viz. A.Y. 2007-08 was passed by his predecessor. We though are not oblivious of the settled position of law that an order of the 'Special bench' of the Tribunal as per judicial discipline would have precedence as against an order passed by a 'division bench' of the Tribunal, and if the same would had been there before the CIT(A) on the date of passing of the order, but had remained omitted to be considered by him, then the same would have clearly been a 'mistake' apparent from record, therein rendering his order amenable for rectification. We however find that the revenue though being well aware of the fact that the order of the 'Special bench' of the Tribunal in the case of the assessee for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed prior thereto is found to be inconsistent, then the same would tantamount to a mistake apparent from record, which would be amenable for rectification under section 35/154 of the 1922 Act/1961 Act. We fail to understand as to from where a similar analogy is being drawn by the Ld. D.R in his attempt to facilitate vesting of a similar power of rectification with an income-tax authority, by bringing in parity a subsequent order passed by a 'Special bench' of the Tribunal, as against a judgment of the Hon'ble Supreme Court. That though there is no doubt that proceedings for rectification of an order can be initiated on the basis of a subsequent order of the jurisdictional High Court or the Hon'ble Supreme Court, which view of ours stands f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not assailing the said order of the CIT(A) before the Tribunal. That our aforesaid view is further fortified from the very fact that we have been informed by the Ld. A.R that the revenue had even exhausted its efforts for seeking rectification of the orders passed by the Tribunal in the case of the assessee for A.Y. 2004-05 by filing a miscellaneous applications u/s 254(2), which however had been rejected. We strongly feel that such back door entry attempted by the revenue by filing the present application for rectification, instead of approaching the proper forum, needs to be deprecated. 7. We thus, in light of our aforesaid observations are of the considered view that the CIT(A) had rightly rejected the application of the revenue seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X
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