TaxTMI 
TaxTMI 
2014 (5) TMI 1202
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "With reference to above it is stated that appeal of the revenue was decided by the Hon'ble Bench vide order dated 26.4.2009, in this respects it is stated that the Hon'ble Tribunal decided the appeal of the department. The issue involved in the appeal is in respect of allowability of further deduction after application of rate of profit in case of interest paid to third party and depreciation. The issue before the Hon'ble Bench was whether 92% expenses has to be considered and rest of the 8% should be taxed irrespective of the deduction of interest and depreciation to the third party. As far as the mistake is concerned I want to draw your kind attention towards the fact that from the perusal of Paragraph 6 of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....263. While delivering the judgment the Hon'ble High Court also approved the application of rate of profit and thereafter allow the depreciation. The issue of interest paid to third party was not the subject matter of this judgment. In such circumstance this case law is not applicable. In case of M/s Bhawan Va Path Nirman the Hon'ble Rajasthan High Court also approved interest pay to third party which to is applicable. The Hon'ble Bench while deciding the appeal said nothing about the judgment of Hon'ble Rajasthan High Court. In this respect it will be worthwhile to mention here that the second mistake is that when the assessee referred case of Supreme Court reported in 266 ITR page 99. The Hon'ble Tribu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owards the order of M/s G.R. Contractor, Sri Ganganagar in which the Hon'ble Tribunal held that past result should have been followed. The next mistake is that the Hon'ble Tribunal while deciding the appeal referred one case of Allied Construction Companies reported in 105 ITD Page 1. The Hon'ble Tribunal while passing the order mentioned as SB case whereas the case reported in 105 ITD Page 1 is a case of Special Bench. There are so many cases that case of special bench is having the character of binding nature. This issue whether the special bench order will prevail or not have thresh out by many time, therefore, I am not submitting much more but only stating that the order of the special bench is having the character ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Encl: -As above Date: - 26/04/2011" 3. During the course of hearing, ld. counsel for the assessee reiterated the contents of the aforesaid Misc. Application and submitted that since the mistake is apparent from the record, the order dated 16/04/2009 may be recalled and rectified. 4. In his rival submissions, Ld. D.R. opposed the recalling of the order and stated that the issue was decided on merit vide order dated 16/04/2009. So, there is no mistake apparent from the record. 5. We have considered the submissions of both the parties and found merit in the submission of learned counsel for the assessee. In the present case, it appears that due to ov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the Ld. CIT(A), but could not controvert the aforesaid contention of the learned counsel for the assessee. 9. We have considered the submissions of both the parties and carefully gone through the material available on record. It is noticed that the Hon'ble Jurisdictional High Court while deciding the case of M/s. B. Ratan & Company for the A.Y. 1993-94 in I.T. Ref. No. 76/1999 vide order dated 24/09/1999 has held as under:- "In the instant cases, the Tribunal while allowing the appeal has directed the Assessing Authority to re-compute the total income as estimated by him and allow relief on account of payment of interest and claim of depreciation. The finding recorded by the Tribunal is pure....