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TMI Blog1991 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... allowances like house-rent and medical reimbursement to the extent of Rs. 5,268 as perquisite. The assessee moved an application under section 154 for rectification of the assessment order with regard to these disallowances by not treating the same as perquisite by the IAC (Asst.) for the purpose of disallowance under section 40A(5) basing on the decision of the Delhi High Court in the case of Instalment Supply (P.) Ltd v. CIT [1984] 149 ITR 457. The IAC (Asst.) rejected the application observing as under : " 2. Similar issue is involved in many other cases and the Departmental stand has been that the Delhi High Court judgment in the case of M/s. Instalment Supply Co. is applicable only with reference to provisions of 40(a)(v) and this sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on 14-5-1984 whereas the assessment order was passed on 1-12-1986. This decision was available to the Assessing Officer and it was brought to his notice but he has not followed the decision of the jurisdictional High Court. Therefore, there is a mistake apparent from the record. In this connection, reliance was placed on the decision of the jurisdictional High Court in the case of Instalment Supply (P.) Ltd. and it was pointed out that in that case the Hon'ble Delhi High Court has considered the provisions of section 40(a)(v) but the Delhi High Court has taken note of the amended provision of section 40(a)(v). Therefore, the decision of the Delhi High Court is still applicable for the provision of section 40A(5). This is also clear from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is case. It was also pointed out that there are several decisions in favour of the assessee. Reference was made to the following decisions :-- (1) Parshuram Pottery Works Co. Ltd. v. D.R. Trivedi, WTO [1975] 100 ITR 651 (Guj.) ; (2) Mettur Chemical & Industrial Corpn. Ltd. v. CIT [1977] 110 ITR 822 (Mad.) ; (3) CIT v. Mohan Lal Kansal [1978] 114 ITR 583 (Punj. & Har.) ; (4) Omega Sports & Radio Works v. CIT [1982] 134 ITR 28 (All.) ; (5) Standard Radiators' case (6) Kil Kotagiri Tea & Coffee Estates Co. Ltd. v. ITAT [1988] 174 ITR 579 (Ker.) ; (7) Bhauram Jawahirmal v. CIT [1980] 121 ITR 487 (All.) ; (8) Blue Star Engg. Co. (Bom.) (P.) Ltd. v. CIT [1969] 73 ITR 283 (Bom.) ; (9) Dalmia Dairy Industries Ltd. v. ITO [1986] 16 ITD 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said to be a mistake apparent from the record. It is also submitted that unless the law is settled, it cannot be said to be a mistake apparent from record. The department has not accepted the decision of the Delhi High Court and appeal is pending before the Hon'ble Supreme Court. Therefore, the application was rightly rejected. It is submitted that the assessee wants to come from the back door without due process of law. So it cannot get this relief. 5. We have considered the rival submissions. It is true that on the point in issue there are contradictory decisions of various High Courts. But so far as the matter before the revenue authorities and the Tribunal established under the jurisdiction of Delhi High Court is concerned, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where there is a decision of a Single Judge or a Division Bench of the Court within whose jurisdiction the ITO is operating as well as a decision of the Supreme Court, the appeals has been preferred against such decision or is pending can make no difference whatever to the binding nature of that decision, so far as the ITO is concerned. It will be pertinent to mention here that the Tribunal has discussed at length the decision of the Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50 on this point and various other decisions and then came to the conclusion that if there is a decision of jurisdictional High Court in whose jurisdiction the revenue authorities are operating and they have not followed it, is a mis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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