TMI Blog2017 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment. It has been further held that the Tribunal cannot in exercise of its power of rectification look into some other circumstances which would support or not support its conclusion. The present application of the assessee u/s 254(2) of the Act is devoid of merits and deserves to be dismissed - M.A. No. 58 of 2017 (a/o I.T.A No. 336/Kol/2011) - - - Dated:- 8-9-2017 - Hon ble Shri M. Balaganesh, AM And Shri S. S. Viswanethra Ravi, JM For the Appellant : Shri J.P. Khaitan, Sr. Advocate For the Respondent : Shri David Z. Chowngthu, Addl. CIT DR ORDER Per M.Balaganesh, AM 1. By virtue of this miscellaneous application, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal which, in the opinion of the ld AR, had made the order of this tribunal erroneous warranting rectification in terms of Section 254(2) of the Act, for which miscellaneous application has been preferred by the assessee. In support of this argument, the assessee placed reliance on the decision of this Tribunal in the case of Hindustan Gum Chemicals Ltd. [2017] (3) TMI 1173 (ITAT Kolkata), wherein, while disposing of appeal with regard to allowance of leave encashment on provision basis vis- -vis section 43B of the Act, the Tribunal had given a specific direction to the ld. AO to give effect to the same based on the final outcome of the Hon'ble Supreme Court in the case of Exide Industries Ltd. The Ld. AR also placed on record the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case law relied upon by the Ld. AR on the Co-ordinate Bench of this Tribunal in the case of Hindustan Gums Chemicals Ltd. , this was an issue on the allowability of provision for leave encashment vis- -vis Section 43B(f) of the Act. The very same issue had travelled to Hon ble Supreme Court which had initially stayed the order of Hon ble Calcutta High Court in the case of Exide Industries Ltd reported in 292 ITR 470 (Cal) and later during Leave Proceedings in Civil Appeal No. CC 22889 of 2008 dated 08.05.2009, had passed an Interim Order stating that the assessee has to pay the tax on provision for leave encashment as if the provision of Section 43B(f) is present in the Statute Book and claim the same as deduction in the return of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereon with regard to captive consumption of electricity. We do not find any error in the said order passed by this Tribunal warranting any rectification in terms of Section 254(2) of the Act. We admit the argument of the Ld. AR that he had indeed made this argument at the time of original appellate proceedings before us that assessee had preferred an appeal before the Hon ble Supreme Court and Leave was granted thereon. But mere non-incorporation of the said argument alone would not change the decision of this Tribunal and would not make the previous order erroneous warranting its recall. Even otherwise, it would only tantamount to exercise of judicial discretion by this Tribunal. We hold that unless there are manifest errors which are ob ..... X X X X Extracts X X X X X X X X Extracts X X X X
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