TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 865
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.... records. The primary issue argued before this Bench in the appeal is with regard to the short point of whether the assessment order was non-est, when the objections raised against the reopening, were not disposed of by way of a speaking order and no further opportunity shall be granted to pass a fresh order of assessment. 4. The assessee has relied upon the binding decision of the jurisdictional High Court in Deepak Extrusions (P.) Ltd. v. Deputy Commissioner of Income-tax, Central Circle 1(4), Bangalore [2017] 80 taxmann.com 77 (Karnataka),which has quashed the order of the AO, for not disposing objections, by way of a separate order. He has also relied upon a decision of the Bangalore Tribunal, in the case of Sri Lakshmana, in ITA No. 382/Bang/2018, dt: 28/07/2021, which was allowed on similar set of facts, by following the decision of the jurisdictional High Court, both of which has been noted in the order passed at page No. 6, by way of a tabulated chart. 5. The ld. AR submitted that, however, the appeal has been remanded to the file of the Assessing officer, to dispose of the objections raised to the reopening of the assessment. The decision rendered is diametrically opposi....
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....gned order erroneous and amounts to a mistake apparent from record. 8. The ld. AR further submitted that the decisions extracted in the impugned order were not relied upon by the revenue nor was it put forth to the petitioner to make a rebuttal, during arguments or later on. The decisions cited by the Tribunal and the assessee's submissions are as follows:- A. Para 10 (i) page 10 of 17 ACIT V Mukut Mahal Pvt Ltd, ITA No. 226/Del/2012, dt: 23/11/2012 B. Para 10 (ii) page 14 of 17 Hajee Hameed V DCIT, 511 to 516/Bang/2009 and 552 to 557/Bang/2009, dt: 28/09/2011. The petitioner has relied upon a binding decision of the jurisdictional High court in Deepak extrusions, supra, dt:15/03/2017, which is a subsequent and binding decision. C. Para 10 (iii) page 15 of 17 ACIT v M R Seetharam ITA 1220/Bang/2015, dt;27/10/2017 The order of the High court in Deepak Extrusions (P.) Ltd, dt: 15/03/2017 was not relied upon during the course of arguments and considered by the Tribunal in the case of M R Seetharam (supra), hence the said case law cannot be said to be laying down the correct proposition. Further, considering the supreme court order in ACIT Vs. Saurashtra Kutch Stock ....
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....d the earlier decision of the coordinate Bench of this Tribunal as regards the non -disposal of the objections by way of a separate speaking order and consequence thereof wherein the Tribunal has cancelled the assessment as bad in law, this Bench ought to have followed the said decision or ought to have referred the said issue to a larger bench following the decision of the Delhi High Court in the case of DLF Universal reported in 172 Taxman 107 [DEL]. 12. Thus, there is a mistake apparent on record and it is prayed that the order of the Tribunal may be recalled for rectification to consider the decision of the High Court of Karnataka in Deepak Extrusions (P.) Ltd, (supra) and quash the assessment order. 13. On the other hand, none appeared for the department. 14. We have heard both the parties and perused the material on record. The main plea of the assessee is that the Tribunal overlooked the judgment of the jurisdictional High Court in the case of Deepak Extrusions (P.) Ltd., 80 taxmann.com 77 (Kar). As such there is a mistake apparent on record. In our opinion, the Tribunal has carefully considered the above judgment and observed that the issue has to go back to the file of ....
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....) of the Act. For this purpose, we place reliance on the judgment of the jurisdictional High Court in the case of CIT v. McDowell & Co. Ltd., 310 ITR 215 (Kar) wherein it was held as under:- "8. We are not concerned in this appeal with the question: "whether the said expenditure has to be treated as 'revenue in nature' as contended by the assessee-company or as 'capital in nature'" as contended by the revenue. But we are concerned only with the question "whether the Tribunal was justified in reversing its findings recorded in its earlier order dated 25-9-2000 in exercise of its power under section 254(2) of the Income-tax Act?" Therefore, we need not discuss in detail the principles laid down in the said three decisions. ......... 12. Application of the principles laid down by the superior courts, to the facts of the case before the Tribunal on erroneous understanding of such principles; recording of an erroneous finding by it based on the facts on record; arriving at a conclusion on erroneous application of provisions of law to the facts of the case, etc., cannot be held to be 'a mistake apparent from the record' warranting any rectification by the Tr....