9911796707
TMI Blog2003 (12) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... uld follow. In the present case, the ld. JM has very aptly compared the facts of the assessee s case with those prevailing in the case of Food Specialities Ltd.[ 1994 (2) TMI 269 - ITAT DELHI] and thereafter directed requisite relief. In conclusion, I agree with the view expressed by the ld. JM vis-a-vis point No.2 of the reference u/s 255(4). As regards the third point of difference, the matter need not detain me much since the non disposal of a ground by the Tribunal is definitely a mistake apparent from the record and all that the Tribunal is required to do is to direct the appeal to be fixed for hearing on the limited aspect of disposing of the said ground on merits. The ld. AM in his order on the M.A. has not said anything on the said ground remaining to be disposed of whereas the ld. JM vide para 11 of his order has directed the matter to be recalled for the limited purpose of adjudicating upon the said ground. I have no hesitation in straight away agreeing with the view expressed by the ld. JM since his approach is the correct one both on facts and in law. Before I part with this reference, I would like to mention that during the course of hearing, the ld. counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mistake apparent from record insofar as the Tribunal's finding with regard to provision of Rs. 4,75,458 for leave encashment of permanent employees was concerned. The claim was allowable as per the Supreme Court's decision in the case of Bharat Earth Movers v. CIT[2000] 245 ITR 4281. The decision of the Supreme Court was directly on the issue and as such it was directly applicable to the claim in question. In view of the Supreme Court decision it was not correct to disallow the claim on the basis of the IT A T's order in earlier years. Accordingly, we modify the Tribunal's order dated31-1-2001in this regard and direct the Assessing Officer to allow the provision of Rs. 4,75,458. 5. As regards the other points raised in the misc. application and pressed before us during the hearing as mentioned above, we hold that there was no mistake apparent from record and there is no case for action under section 254(2) of the Act. The assessee by raising these points in the misc. application has in fact tried to obtain review of the order which is not permissible under section 254(2) of the Act. The contentions made in the misc. application are argumentative. The decision rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d opinion, there is substance in the submissions of learned counsel for the assessee. Initially, there was a dispute as to whether outstanding liabilities of sales-tax could be allowed as deduction in view of section 43B. In order to remove the hardship causing to the assessee, the legislature inserted the proviso to section 43B by Finance Act, 1987 which allowed deduction if such liability was discharged on or before the due date of filing income-tax return. This proviso was held to be retrospective by the Hon'ble Supreme Court in the case of Allied Motors (P.) Ltd. (supra). In view of this finding and declaration of law, the claim of assessee has to be allowed if sales-tax liability outstanding at the end of the year is discharged by assessee before the due date of filing of income-tax return irrespective of the method of accounting adopted by the assessee. This judgment of Supreme Court was cited before the Tribunal as is apparent from the noting made by the then members on the grounds of appeal filed by assessee. Perhaps, while dictating the order, this judgment slipped from their minds. Hence, in my considered opinion, an apparent mistake within the ambit of section 254(2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in the case of ITO v. Food Specialties Ltd. [1994] 49 ITD 21 wherein such method was held to be in accordance with the provisions of section 43B and deduction under section 43B was accordingly allowable. The counsel further states that he wanted to explain the same with regard to the facts on record but the Bench observed that there was no need to argue further. However, the claim of assessee has been disallowed by upholding the order of the CIT(A) vide Para26 which has already been quoted. It has been pleaded before us that Tribunal, by inadvertence, failed to follow the said decision and, therefore the Tribunal committed a mistake apparent from the record. 10. In my considered view, there is substance in the pleadings of learned counsel for assessee. The perusal of appeal record shows that both the members of the Tribunal, who heard the assessee's appeal had noted citation of Special Bench decision against Ground No.6. One of the members has also noted as covered". So the fact which emerges from the record is that said decision of Special Bench was cited before and noted by the Bench. I have gone through the paper book filed by the assessee and facts recorded in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Hon'ble President of the Tribunal under section 255(4) of the Income-tax Act, 1961 :- "1. Whether on facts and in law, the Income-tax Appellate Tribunal committed an apparent mistake by including the following in the directions given by the Tribunal in para 22 of its order dated 31-1-2001 while deposing the issue under section 43B : "........ and after due verification of the accounting method followed by the assessee with regard to the aforesaid items.' 2. Whether on facts and in law, the Tribunal committed an apparent mistake in upholding the addition of Rs, 79,99,706 in para 26 of the impugned order by ignoring the Special Bench decision in the case of Food Specialities, 49 ITD 21, though inadvertently, which was cited and relied upon by the assessee's counsel ? 3. Whether on facts and in law, the Tribunal committed an apparent mistake in not adjudicating upon the issue regarding the disallowance of Rs. 17,17,965 raised by the assessee in Ground No. 6(b)? THIRD MEMBER ORDER Per Shri R.M. Mehta, Vice President. 1. The following points of difference between the Learned Members constituting the Division Bench were referred to me as Third Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtaining to the applicability of section 43B had been restored back to the file of the Assessing Officer for deciding the same on merits but with the observation that the accounting method followed by the assessee be verified. As already observed by me the ld. AM in deciding the M.A. did not make any observation on the aforesaid issue by the ld. JM proceeded to discuss the relevant provisions of law and applying thereby the judgment of the Hon'ble Supreme Court in the case of Allied Motors (P.) Ltd. (supra) substituted the earlier directions of the Division Bench with the following directions: - "After hearing both the sides and considering the materials on the file, we are of the ,view that in the interest of justice and fair play the matter should be set aside and restored to the Assessing Officer, who shall decide the matter afresh in accordance with the provisions of the proviso to section 43B." 4. The ld. counsel for the appellant contended before me that vis-a-vis the relevant provisions of law, there was no necessity to examine the method of accounting adopted by the assessee and therefore, the return of the matter back to the file of the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the ld. counsel, since the ld. JM in deciding the M.A. had examined the Special Bench decision at length and directed relief thereafter finding the assessee's case also to be in pari materia on facts, his decision was required to be upheld by the Third Member in contradistinction to the view expressed by the ld. AM and such a view not containing any discussion or reasons or the case law cited. The ld. DR on the other hand supported the order passed by the ld. AM. 9. After considering the rival submissions, I am of the view of the order passed by the ld. JM is the correct one both on facts and in law. As rightly argued by the ld. counsel the non-consideration of a judgment cited before the Tribunal constitutes a mistake apparent from the record within the meaning of section 254(2) and on being pointed out by any of the parties, the Tribunal is obliged to take into account the judgment so cited irrespective of the results that would follow. In the present case, the ld. JM has very aptly compared the facts of the assessee's case with those prevailing in the case of Food Specialities Ltd. (supra) and thereafter directed requisite relief. 10. In conclusion, I agree with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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