TMI Blog2010 (8) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Revenue relied upon the subsequent order of the Tribunal passed with respect to M/s. Kothari Products Limited, M/s. Roll Tubes Limited and M/s. Quality Steel Tubes Limited, founded on the judgment of Hon ble Supreme Court in the case of Tuticorin Alkali Chemicals Fertilizers Ltd. v. CIT [1997] 227 ITR 172, CIT v. Dr. V.P. Gopinathan [2001] 248 ITR 449 and CIT v. Sterling Foods [1999] 237 ITR 579. The Tribunal relying upon the earlier decisions, rejected the rectification application with finding that no rectifiable mistake is found in Tribunal s order dated 10-2-2003. Hence the present appeal. 3. The appeal was admitted on following substantial question of law by a Division Bench of this Court on 10-11-2003 which is as under: Whether in view of the facts and circumstances of the case, the learned Income-tax Appellate Tribunal was right in law in allowing deduction under section 80-I of the Income-tax Act, 1961 on the interest income, ignoring the authoritative pronouncement of Supreme Court of India in the case of CIT v. Sterling Foods Ltd. 237 ITR 579 and in the case of Cambay Electric Supply Industrial Co. Ltd. v. CIT [1978] 113 ITR 84? 4. On 1-4-2010, the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law; (ii)in computing the period during which a person has been an advocate, there shall be included any period during which the person has held judicial office or the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate. (2A) An accountant member shall be a person who has for at least ten years been in the practice of accountancy as a chartered accountant under the Chartered Accountants Act, 1949 (38 of 1949), or as a registered accountant under any law formerly in force or partly as a registered accountant and partly as a chartered accountant, or who has been a member of the Indian Income-tax Service, Group A and has held the post of Additional Commissioner of Income-tax or any equivalent or higher post for at least three years. (3) The Central Government shall appoint the Senior Vice-Preside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which- (a)has been determined by the Appellate Tribunal; or (b)has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. [Emphasis supplied] 10. The provision as contained in Section 260A of the Act is the pari materia of section 100 CPC which requires that substantial question of law, is to be framed by the High Court itself. High Court has ample power under sub-section (4) of section 260A of the Act, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while deciding the application under section 254(2) of the Act. The term every order used in section 260A of the Act and apart from being qualified being as one involving substantial question of law, shall mean, to finally disposing the rights of parties in issue involved in appeal. But when an application for rectification is filed, an order under section 254(2) of the Act, is passed, rejecting such application, it does not decide the substantial question of law or issue involved between the parties because of the fact that the issue had already been decided while passing the original order under section 254(1) of the Act by the Tribunal. 14. Application filed at later stage under section 254(2) of the Act through miscellaneous application for rectification of mistake within statutory period of limitation of four years and in case same is rejected, it would only make the original order passed by the Tribunal final. In such situation, if at all, there is any substantial question of law that may raise any right of parties decided by the Tribunal, then that can be only under the orders passed under section 254(1) of the Act. Accordingly, such order rejecting the application und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me principle has been reiterated in the cases of Vemareddy Kumaraswamy Reddy v. State of AP [2006] 2 SCC 670, Delhi Financial Corpn. v. Rajeev Anand [2004] 11 SCC 625, Nalinakhya Bysaciks v. Shyam Sunder Haldar AIR 1953 SC 148 and Dental Council of India v. Hari Prakash [2001] 8 SCC 61. 20. Accordingly, rejecting an application for rectification, cannot be said to be an order passed in appeal by the Tribunal and, therefore, further appeal to High Court shall not be maintainable. While deciding an issue in dispute on merit in rejection application, the Tribunal is confined to remove the error apparent at the face of record. Of course, in case the application is allowed, then original order stands corrected and aggrieved party would have got option to prefer an appeal under section 260A of the Act. 21. There is one other aspect of the matter. In the case reported in CIT v. Durga Engg. Foundry Works [2000] 245 ITR 272 Hon ble Supreme Court held that appeal shall lie in case the Tribunal declined to make reference under section 256 of the Act on a question of law arising out of controversy involved. The expression provided under section 260A which provides for an appeal to High ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
