TaxTMI 
TaxTMI 
2003 (12) TMI 287
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....ance of motor car under section 37(3A) (vide para 14 of the Tribunal's order), excess collection of sales tax (vide paras 19 to 22 of the Tribunal's order), claim of excise duty (vide paras 23 to 26 of the Tribunal's order) and expenditure on spare parts (vide para 49 of the Tribunal's order). 4. After considering the rival submissions we are of the view that there is mistake apparent from record insofar as the Tribunal's finding with regard to provision of Rs. 4,75,458 for leave encashment of permanent employees was concerned. The claim was allowable as per the Supreme Court's decision in the case of Bharat Earth Movers v. CIT[2000] 245 ITR 4281. The decision of the Supreme Court was directly on the issue and as such it was directly applicable to the claim in question. In view of the Supreme Court decision it was not correct to disallow the claim on the basis of the IT A T's order in earlier years. Accordingly, we modify the Tribunal's order dated31-1-2001in this regard and direct the Assessing Officer to allow the provision of Rs. 4,75,458. 5. As regards the other points raised in the misc. application and pressed before us during the hearing as ....
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....ion 43B as well as the judgment of Supreme Court (supra) since deduction has to be allowed irrespective of the method of accounting if such payments are made on or before due date of filing income-tax returns. Hence, according to him, an apparent mistake has been committed by the Tribunal while-issuing the directions regarding verification of method of accounting. In my concerned opinion, there is substance in the submissions of learned counsel for the assessee. Initially, there was a dispute as to whether outstanding liabilities of sales-tax could be allowed as deduction in view of section 43B. In order to remove the hardship causing to the assessee, the legislature inserted the proviso to section 43B by Finance Act, 1987 which allowed deduction if such liability was discharged on or before the due date of filing income-tax return. This proviso was held to be retrospective by the Hon'ble Supreme Court in the case of Allied Motors (P.) Ltd. (supra). In view of this finding and declaration of law, the claim of assessee has to be allowed if sales-tax liability outstanding at the end of the year is discharged by assessee before the due date of filing of income-tax return irrespect....
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....aimed as deduction under section 43B as it could be allowed only in this year on account of actual payment. Such claim was disallowed by lower authorities as there was change in method of valuation of stock which was being adopted consistently in the past. On further appeal, it was submitted before the Tribunal that the issue was covered by the decision of Special Bench in the case of ITO v. Food Specialties Ltd. [1994] 49 ITD 21 wherein such method was held to be in accordance with the provisions of section 43B and deduction under section 43B was accordingly allowable. The counsel further states that he wanted to explain the same with regard to the facts on record but the Bench observed that there was no need to argue further. However, the claim of assessee has been disallowed by upholding the order of the CIT(A) vide Para26 which has already been quoted. It has been pleaded before us that Tribunal, by inadvertence, failed to follow the said decision and, therefore the Tribunal committed a mistake apparent from the record. 10. In my considered view, there is substance in the pleadings of learned counsel for assessee. The perusal of appeal record shows that both the members of the....
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....submission of assessee and hold that mistake was committed by not adjudicating such issue. Accordingly, the order of Tribunal on this issue is recalled for adjudication. 12. Except as stated above, I agree with the rest of the order proposed by my learned Brother. REFERENCE UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 1. Since there is a difference of opinion between the Members, the following questions are referred to the Hon'ble President of the Tribunal under section 255(4) of the Income-tax Act, 1961 :- "1. Whether on facts and in law, the Income-tax Appellate Tribunal committed an apparent mistake by including the following in the directions given by the Tribunal in para 22 of its order dated 31-1-2001 while deposing the issue under section 43B : "........ and after due verification of the accounting method followed by the assessee with regard to the aforesaid items.' 2. Whether on facts and in law, the Tribunal committed an apparent mistake in upholding the addition of Rs, 79,99,706 in para 26 of the impugned order by ignoring the Special Bench decision in the case of Food Specialities, 49 ITD 21, though inadvertently, which was cited and relied upon by t....
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....assed a separate order considering some of the issues on which the ld. AM had not given any decision. The subsequent view expressed by the ld. JM was in the direction of rectifying certain mistake which according to him were those apparent from the record and therefore rectifiable under section 254(2). The first of these was the observation in para 22 of the order of the Division Bench whereby the matter pertaining to the applicability of section 43B had been restored back to the file of the Assessing Officer for deciding the same on merits but with the observation that the accounting method followed by the assessee be verified. As already observed by me the ld. AM in deciding the M.A. did not make any observation on the aforesaid issue by the ld. JM proceeded to discuss the relevant provisions of law and applying thereby the judgment of the Hon'ble Supreme Court in the case of Allied Motors (P.) Ltd. (supra) substituted the earlier directions of the Division Bench with the following directions: - "After hearing both the sides and considering the materials on the file, we are of the ,view that in the interest of justice and fair play the matter should be set aside and restore....
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....counsel for the assessee vehemently contended before me that the non-consideration of a judgment whether it be of the Special Bench of the Tribunal or the Division Bench of the Tribunal and the judgments of the Hon'ble Supreme Court and High Court cited during the course of the hearing and not considered by the Bench constituted a mistake apparent from the record and further, according to the ld. counsel, since the ld. JM in deciding the M.A. had examined the Special Bench decision at length and directed relief thereafter finding the assessee's case also to be in pari materia on facts, his decision was required to be upheld by the Third Member in contradistinction to the view expressed by the ld. AM and such a view not containing any discussion or reasons or the case law cited. The ld. DR on the other hand supported the order passed by the ld. AM. 9. After considering the rival submissions, I am of the view of the order passed by the ld. JM is the correct one both on facts and in law. As rightly argued by the ld. counsel the non-consideration of a judgment cited before the Tribunal constitutes a mistake apparent from the record within the meaning of section 254(2) and on b....