1988 (2) TMI 119 - AT - Income Tax

Summary

Issues:
1. Request to recall the order of the Tribunal regarding the allowability of provision on account of leave salary based on actuarial valuation certificate.
2. Whether the order of the Tribunal should be recalled in light of a subsequent judgment by the Hon'ble Delhi High Court.
3. Consideration of the mistake alleged in the Tribunal's order under section 254(2) of the IT Act, 1961.

Analysis:

1. The assessee filed an application requesting the recall of the Tribunal's order in relation to the allowability of the provision for leave salary based on an actuarial valuation certificate under section 37(1) of the IT Act, 1961. The assessee acknowledged that the Tribunal's decision was based on a judgment of the Hon'ble Calcutta High Court but argued that a subsequent contrary view by the Hon'ble Delhi High Court necessitated a recall of the Tribunal's order to align with the Delhi High Court's decision.

2. The Revenue opposed the application, contending that there was no mistake in the Tribunal's order at the time it was passed. The Revenue argued against recalling the order under section 254(2) of the IT Act, 1961, as the Tribunal's decision was based on the available legal position at that time, considering the judgment of the Hon'ble Calcutta High Court.

3. After considering the submissions of both parties, the Tribunal held that the alleged mistake in its order was not one that warranted correction under section 254(2) of the IT Act, 1961. The Tribunal noted that when the order was passed, there was no conflicting judgment from any other High Court, and the decision was based on the prevailing legal position, as per the judgment of the Hon'ble Calcutta High Court. The subsequent judgment of the Hon'ble Delhi High Court did not render the Tribunal's decision a mistake apparent from the record, as it merely introduced a different view on the issue. Citing relevant case law, the Tribunal emphasized that the existence of two possible opinions on a legal matter does not constitute a mistake apparent from the record. Therefore, the Tribunal rejected the assessee's application for recall of the order.

In conclusion, the Tribunal declined to recall its order concerning the allowability of the provision for leave salary, as the subsequent judgment of the Hon'ble Delhi High Court did not establish a mistake apparent from the record in the original decision based on the judgment of the Hon'ble Calcutta High Court.