TaxTMI 
TaxTMI 
2009 (9) TMI 57
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....me of the flats, the size was less than 1500 sq.ft. area. In respect of flats which are measuring less than 1500 sq.ft., the petitioner claimed deduction under section 80I-B(10) of the Income-tax Act. 2 (a). The assessing officer, by order dated 26.12.2006, held that the petitioner was not entitled for deduction in respect of those two projects since all the flats were not of specified size. As against the said order, the petitioner filed an appeal before the Commissioner of Income-tax (Appeals), who allowed the appeal and granted deduction under section 80I-B(10) of the Income-tax Act (in short, "the Act") in respect of residential units which are less than 1500 sq.ft. of size, based on the Division Bench order of the Income-tax Appellate Tribunal in Bengal Ambuja Housing Developments Ltd. v. Commissioner of Income-Tax in ITA No.1595/Kol/2005. 2 (b). It was, as against the said order of the Commissioner of Income-tax (Appeals), the respondent Department filed an appeal before the Income Tax Appellate Tribunal, which came to be allowed on13.10.2008, thereby setting aside the order of the Commissioner of Income-tax (Appeals) and rejecting the claim of deduction made by the petitio....
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...., apart from the judgments of this Court in Lakshmi Vilas Bank Ltd. v. CIT (284 ITR 93) and CIT v. L.G.Ramamurthi (110 ITR 453). 4. It is the case of the petitioner that in all fairness, the first respondent having realised non-consideration of the Co-ordinate Bench decision of Kolkatta Tribunal and the judgment of the Calcutta High Court should have set aside its earlier order dated 13.10.2008 and passed even a similar order by considering the decision of Co-ordinate Bench of Kolkatta Tribunal and the judgment of the Calcutta High Court and differing with the stand taken in those judgments, on facts, since under section 254(2) of the Income-tax Act, no party should suffer on account of any mistake committed by the Tribunal. It is also stated that the Supreme Court has held that the Tribunal has to rectify its mistake, which is its inherent power. 5. In the counter affidavit filed by the respondent Department, it is stated that as against the original order of the first respondent dated 13.10.2008, even if there was any mistake, the further course of action which was available to the petitioner was to file a tax case appeal before the Division Bench of this Court under section 26....
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....High Court and thus, a substantial mistake has been committed on the face of record and the same has to be rectified. He would also rely upon the judgment in CIT vs. Highway Construction Co.(P) Ltd., [(1996) 217 ITR 234) and CIT vs. Smt. Nirmalabai K. Darekar [(1990) 186 ITR 242). 7. On the other hand, it is the contention of the learned counsel for the respondent/revenue that the High Courts of different jurisdiction and their judgments are not binding on the respondent Tribunal. It is his submission that every Income-tax Appellate Tribunal is an independent entity and there is no question of binding precedent between the decisions of various Tribunals in various places in India. He would rely upon the judgment in Nova Films and Paper Manufacturing Company vs. Income Tax Officer [(2008) 296 ITR 340) to contend that the writ petition is not maintainable. He also placed reliance on the decision in CIT vs. Thana Electricity Supply Ltd., [(1994) 206 ITR 727] and CIT vs. Vardhman Spinning [(1997) 226 ITR 296]. It is his contention that in fact in the impugned order, the first respondent has considered the Bench decision of the Kolkatta Tribunal and there is no grievance to the petitio....
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....as held judicial office or the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate. (2A) An accountant member shall be a person who has for at least ten years been in the practice of accountancy as a chartered accountant under the Chartered Accountants Act,1949 (38 of 1949), or as a registered accountant under any law formerely in force or partly as a registered accountant and partly as a chartered accountant, or who has been a member of the Indian Income-tax Service, Group A and has held the post of [Additional] Commissioner of Income-tax or any equivalent or higher post for at least three years.] (3) The Central Government shall appoint the Senior Vice-President or one of Vice-Presidents of the Appellate Tribunal to be the President thereof. (4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice-President or, as the case may be, Vice-Presidents thereof. (4A) The Central Government may appoint one of the Vice-Presidents of the Appellate Tribunal to be the Senior Vice-President thereof. (5)....
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.... Officer. Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October,1998, shall be accompanised by a fee of fifty rupees." 13. On the facts of the present case, the impugned order which is challenged in this writ petition, is admittedly passed in an application filed after the original appeal was disposed of and within four years under section 254(2) of the Act. However, in the impugned order, the first respondent Tribunal has come to a conclusion that there is no mistake apparent on record to rectify and what is called by the petitioner is to review the decision of the Tribunal which is not permissible under the Act. 14. In Chem Amit vs. Assistant Commissioner of Income Tax [(2005) 272 ITR 397), a Division Bench of Bombay High Court has held that an order passed by the Income-....
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....owers the assessee and the Revenue to require the Tribunal to refer to the High Court any question of law. As already noticed above, in s.256 the expression used is, "require the Tribunal to refer to the Hgih Court any question of law arising out of an order passed under s.254". However, in s.260A, the legislature has not provided an appeal to the High Court from every order passed under s.254 but has confined it to the order passed in appeal by the Tribunal. This is made clear by the use of expression, "an appeal shall lie to the High Court from every order passed in appeal by the Tribunal". If the legislature intended to provide an appeal to the High Court from the order passed by the Tribunal on the application for rectification under s.254(2), the legislature would not have used the expression in s.260A that an appeal shall lie to the High Court from every order passed in appeal by the Tribunal, but instead used the expression as is used in s.256 that an appeal shall lie to the High Court from every order passed in appeal by the Tribunal, but instead used the expression as is used in s.256 that an appeal shall lie to the High Court from every order passed under s.254. The expre....
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....w Wallace & Co. Ltd., vs. Income Tax Appellate Tribunal & Others [(1999) 240 ITR 579], wherein it was held as follows: "10. Regarding the point of s.260A, in my opinion, an appeal would not be permissible from any and every order passed by the Tribunal under this section. If, say, an order of adjournment is passed, the assessee could not come in appeal to the High Court under s.260A. There are many instances of provisions allowing appeals where words such as every order, any order, all orders, etc. have been interpreted to mean and include only those orders which are substantially final in some sense or the other, and which finally dispose of or affect the parties rights in regard to some important point in controversy. In my opinion, the words every order in s.260A means exactly this. Also to be appealable, the order of the Tribunal has to be passed in appeal. Here, the impugned order of the Tribunal was not passed in appeal, but in a miscellaneous application directed towards rectifying mistake apparent from the record. If the order under s.254(2) had taken the shape of modifying by way of amendment or rectification, the original order to some extent, then both of those jointly ....
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....velopment and construction of the housing project on or after the 1st day of October, 1998 and completes such construction,- (i) in a case where a housing project has been approved by the local authority before the 1st day of April,2004, on or before the 31st day of March,2008; (ii) in a case where a housing project has been, or, is approved by the local authority on or after the 1st day of April,2004, within four years from the end of the financial year in which the housing project is approved by the lcoal authority. Explanation.- for the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authorities. (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply....
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....t respondent Appellate Tribunal has not technically referred to the order of Co-ordinate Bench of Kolkatta Tribunal and the subsequent decision of the Calcutta High Court, the substance of the same has been discussed in detail against which certainly the petitioner has got a right of appeal and therefore, the filing of application for rectification under section 254(2) of the Act after disposal of the appeal, is in my considered view, totally misconceived. 22. In any event, in the impugned order, the first respondent Tribunal has explicitly taken note of the substance of the issue decided by the Kolkatta Tribunal in Bengal Ambuja Housing Developments Ltd. v. CIT, wherein it was decided that the eligibility condition for deduction under section 80I-B(10) of the Act is that the built up area should not exceed 1500 sq.ft. and the same is applicable to the entire project, by relying upon the judgments of the Supreme Court reported in Padmasundara Rao (decd.) and others vs. State of Tamil Nadu and Others [255 ITR 147 (SC)] and Britannia Industries Ltd., vs. C.I.T. [278 ITR 546 (SC)]. 23. In C.I.T. v. Vardhman Spinning [(1997) 226 ITR 296 (P&H)], a Division Bench of Punjab and Ha....