2020 (12) TMI 1037

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.... order dated 30.12.2011 denied Assessee's claim of deduction under Section 10B of the Act on various grounds. The said order of the AO was also upheld by the CIT(A) vide order dated 31.08.2012. A.1.2 Subsequently, cross appeals were filed before the ITAT by the Assessee as well as Revenue, which were disposed by the Hon'ble ITAT vide consolidated order dated 08.03.2013 [refer Annexure-2] A.1.2 In the above order, the Hon'ble ITAT threadbare discussed the objections of the lower authorities, inter-alia , qua the Assessee's eligibility to claim deduction under Section 10B and has held that the various grounds leading to denial of such deduction was erroneous both on facts and in law; and therefore, the Assessee's claim for deduction under Section 10B of the Act was upheld. A.1.3 The Hon'ble ITAT, however, in para-45.21 of the above order, suo-moto noted that the Assessee had while computing the deduction under Section 10B of the Act had debited crude ore extracted from its own mines at 'cost' which was not in accordance with Section 10B(7) r.w.s. 80IA(8) of the Act which requires to apply 'market value' and therefore, the Hon'ble ITAT remanded the matter ba....

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....the assessee to adduce the material and evidence in this regard." [Emphasis Supplied] A.1.4 Subsequently, the Revenue filed Miscellaneous Application (bearing M.A. No. 10/PNJ/2013) ['First MA'] before the Hon'ble ITAT seeking rectification of certain mistake purportedly apparent from records crept in the above order dated 08.03.2013. The Hon'ble ITAT, however, dismissed the said MA vide order dated 06.09.2013 [refer Annexure-3], inter-alia, on the ground that 'Revenue in the garb of application for rectification resort to re-open and argue the matter which is beyond the scope of Section 254(2)". A.1.5 Thereafter, the Revenue again filed fresh Miscellaneous Application (bearing M. A. No. 30/PNJ/2014) ['Second MA'] before the Hon'ble ITAT seeking rectification of the above order dated 08.03.2013 on the basis of the fresh evidences collected by the Revenue during the course of survey conducted at various premises of Assessee on 20.03.2014. The Hon'ble ITAT, however, dismissed the said MA vide order dated 07.01.2015 [refer Annexure- 4]. A.1.6 In the meanwhile, the Revenue went up in appeal before the Hon'ble High Court challenging the order of the Hon'ble ITA....

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....liable to be reversed. 15. In reply, the ld. AR submitted that the appeal for the A.Y 2009-10 was pending before the ld. CIT(A) and the hearing for the same was also concluded through the order has not been received. It was the submission that the said fresh evidences as produced by the AO, which was found in the course of the survey on the Assessee, were also produced before the ld. CIT(A). It was the submission that this issue could be restored to the file of the ld. CIT(A) for readjudication in line with his decision for the A.Y 2009-10. 16. We have considered the rival submissions. As it has been admitted that the appeal for the A.Y 2009-10 is under adjudication before the ld. CIT(A) and that fresh evidences have been found in the course of the survey conducted after the order of the Tribunal which has been followed by the ld. CIT(A), we are of the view that this issue in respect of ground nos. 6 to 16 of this appeal in relation to the claim of deduction u/s 10B is liable to be restored to the file of the ld. CIT(A) for re-adjudication after granting the Assessee adequate opportunity of being heard, and we do so. In the result, ground nos. 6 to 16 of the Reven....

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....T(A) against the appeal effect order dated 17.10.2014 passed under Section 254/143(3) of the Act, subject matter of which was limited to application of provisions of Section 10B(7) r.w.s. 80IA(8) of the Act. C.1.3 Thus, the admission of the AR was restricted to grounds of appeal nos. 13 to 16 which related to computation of deduction under Section 10B of the Act. By making said admission, the AR of the Assessee agreed that the issues raised in grounds of appeal nos. 13 to 16 relating to determination of 'market value' for inter unit transfer of crude ore, relevant for provisions of Section 10B(7) r.w.s. 80IA (8) of the Act, may be remanded to the CIT(A) since the appeal for AY 2009-10 involving the similar issues arising out of the appeal effect order dated 17.10.2014 was already pending before the CIT(A). C.1.4 It would be noted that issues raised in grounds of appeal nos. 6 to 12, which related to eligibility of Assessee to claim deduction under Section 10B of the Act was squarely covered by the order of the Hon'ble ITAT for AY 2009-10 and which was also followed by the CIT(A). Thus, the order of the Hon'ble Bench in remanding even these grounds of appeal nos. 6 to 12 is cl....

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....t also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its Order dated 10-9-2003 allowing the Rectification Application has given a finding that Samtel Color Ltd.'s case (supra) 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. 13. "Rule of precedent" is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2) of the Income-tax Act, 1961. When prejudice re....

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....e and are distinguishable. The Ld. DR accordingly submitted that the M.A. filed by the assessee be dismissed. 4. The Ld. AR in his rejoinder submitted that there is no delay in filing the present M.A. as the same was file within the period of four years from the date of the order in the Appeal being ITA No. 92/PNJ/2015 dated 10.09.2015. The Ld. AR submitted that the amendment in Section 254 (2) is not retrospective but prospective and is applicable only to the orders passed on or after 01.06.2016. For the above propositions he relied on the following decisions: i) Pr. CIT vs. Income Tax Appellate Tribunal (2020) 425 ITR 581 (Bom. HC) ii) District Central Co-op. Bank Ltd. vs. UOI (2017) 398 ITR 161 (M.P. HC) iii) Gifford & Partners Ltd. vs. A.D.I. - 1(1), Kolkata (2018) 169 ITD 224 (Kol. Tri.) 4. We have heard both the parties and perused all the relevant material available on record. Before deciding the Misc. Application on merit, we have to first decide the maintainability of the same. In the instant case, the present Misc. Application is filed in respect of order dated 10.09.2015 passed by the Tribunal in ITA No. 92/PNJ/2015 for A.Y. 2010-11. The ....