TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 413
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....rror apparent on the face of the record committed by the Tribunal." 2. Respondent assessee is a company registered under the Companies Act. For the assessment year 200102, the assessee had filed return of income declaring 'nil' income. The Assessing Officer framed scrutiny assessment on 26.03.2004 assessing total income at Rs. 4.9 crores (rounded off). This included addition of Rs. 15.68 crores made on account of disallowance of the assessee's claim under section 80IA of the Income Tax Act, 1961, on setting up of a new power generation plant. 3. The claim of the assessee was that during the year under consideration, the assessee had established a new power plant by expending a sum of Rs. 14.56 crores. The assessee had claimed deduction under section 80IA of the Act in relation to the profit derived from such undertaking. The Assessing Officer examined such claim. He was of the opinion that generation of power would require boiler and turbine both since boiler would manufacture steam which would be a raw material for production of power with the aid of turbine. The assessee had merely installed a new turbine, claiming it to be a new industrial undertaking capable of g....
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....uction, of a business already in existence. The second condition states that the undertaking is not formed by the transfer to a new business of machinery or plant previously used for any purpose. Explanation 2 to this subsection states that where in the case of an undertaking, any machinery or plant or any part thereof previously used for any purpose is transferred to a new business and the total value o the machinery or plant or part so transferred does not exceed twenty per cent of the total value of the machinery or plant used in the business, then, for the purposes of clause (ii) of this subsection, the condition special therein shall be deemed to have been complied with. This is an undisputed fact that in this case the assessee has not transferred the existing boiler to the new undertaking for generating the power but the contention of the assessee is that the same very boiler is being used for supplying the steam to both the turbine which was already in existence and the new one established by the assessee. The claim of the assessee is that the new turbine established by him itself is a new undertaking engaged in the business of generating the power. New turbine itself cannot....
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....ded by the Tribunal. The assessee pressed the ratio of the High Court in case of Gujarat Alkalies and Chemicals Ltd. (supra) to contend that the Tribunal had committed an error apparent on the face of the record which required rectification. This application was strongly opposed by the Revenue contending that the judgment of the Tribunal did not suffer from any error apparent on the record and the same therefore did not require any rectification. The Tribunal by the impugned order dated 11.05.2012, allowed the application for rectification, recalled its earlier judgment dated 16.05.2008, revived the assessee's appeal and ordered it to be posted for further hearing. This order of the Tribunal has given rise to the present Tax Appeal at the hands of the Revenue. 8. Learned counsel Shri Bhatt for the Revenue submitted that the Tribunal by the judgment dated 16.05.2008 had considered all issues on the available materials on record. The Tribunal had come to the conclusion that the assessee had not set up a new industry for power generation. This view was not opposed to the decision of the Gujarat High Court in case of Gujarat Alkalies and Chemicals Ltd. (supra), the judgment did no....
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....) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record." 10. From the facts on record, it emerges that the Tribunal in its original judgment dated 16.05.2008 had held that the assessee had not established a new power plant so as to qualify for deduction under section 80IA of the Act. The Tribunal recalled this order in exercise of powers of rectification on the ground that this view is not in consonance with in case of Gujarat Alkalies and Chemicals Ltd. (supra). It is undisputed that under section 254(2) of the Act, the Tribunal enjoys the power to rectify any mistake apparent on the face of the record at any time within four years from the date of the order. In view of the judgment of this Court in case of Assistant Commissioner of IncomeTax v. Saur....
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....for power generation, which relied on the excess steam production capacity of the plant. The assessee claimed that it had thus, set up a new power plant which qualify for deduction under section 80IA of the Act. The Tribunal by its original judgment, upheld the view of the Revenue authorities holding that turbine itself would not be sufficient to generate power and the plant therefore would not qualify as a new industry. On the basis of judgment of Supreme Court in case of Gujarat Alkalies and Chemicals Ltd. (supra), however, the Tribunal was persuaded to recall this judgment and post the appeal for further hearing. In Gujarat Alkalies' case, the facts were that the assessee was in the business of manufacturing caustic soda and other chemicals, for which, it had installed a production plant. The assessee acquired a new industrial license and a new letter of intent for substantial expansion of the production capacity of the caustic soda, by which, its existing capacity was nearly doubled. The assessee had made sizable investment in acquiring new machinery and plant. The assessee therefore claimed that this was a new industrial undertaking and the profit in respect of which would....