TMI Blog1999 (9) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... under the name and style M/s Sasidhara Shenoy Bros. It is conducting a theatre. The first respondent AO, for the asst. yrs. 1984-85 and 1985-86 allowed depreciation on the theatre building at the rates applicable to the buildings. The case of the petitioner was that the building ought to have been treated as a plant and depreciation should have been given as a plant. Appeal filed by the petitioner was dismissed. On further appeal, the Tribunal held that the theatre building was a plant eligible for depreciation at the rates applicable to a plant. The Revenue did not accept the decision of the Tribunal. Accordingly, a reference was made to this Court under s. 256 of the Indian IT Act. The reference was disposed of by judgment dt. 3rd Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was binding on this Bench of the Tribunal. Hence when the Tribunal passed the order under s. 260(1) on 19th May, 1997, the matter had reached finality and since such order was passed as a result of the judgment of the High Court it cannot be said that the impugned order suffers from any mistake apparent from record requiring rectification in the light of the Full Bench decision rendered by the High Court on the idential issue in the case of another assessee. In this view of the matter, we hold that the order passed by the Tribunal on 19th May, 1997, under s. 260(1) of the IT Act, does not suffer from any mistake apparent on record warranting rectification." 4. Shri P.G.K. Wariyar appearing for the petitioner submitted that it is axio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. Another decision cited was East India Corporation Ltd. vs. CIT (1975) 99 ITR 287 (Mad) : TC 56R.627. The facts in that case also show that it has no relevance for our purchase. 5. The question involved in whether a person can ask the CIT to delete the decision of the High Court on the basis of which a reference has been disposed of by another decision on the ground that such a decision is the correct position of law. It is not difficult to state that a subsequent binding decision will be a good ground for review, But in the present case, we are not concerned with the question of review as it is commonly understood. It is true that the decision in the reference application made by the petitioner has not been followed by the Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. It has been held in CIT vs. Tehri Garhwal State (1934) 2 ITR 1 (PC) : TC 56R.579 that if the judgment expounds a wrong construction of the Act, an appeal against it is open, and there is no other procedure by which it can be corrected. "An application for review of a judgment passed by a High Court in a reference is not maintainable, for the High Court which determines the questions referred under s. 256 does not act as a civil Court so as to attract the provisions of the CPC" vide Jose T. Mooken vs. CIT (1979) 11 CTR (Ker) 43 : (1979) 117 ITR 921 (Ker) : TC 55R 934. 6. In the above view of the matter, I am of the view that Ext. P2 order passed is correct. The original petition is dismissed. - - TaxTMI - TMITax - Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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