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TMI Blog2011 (1) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... t lay down the correct law and the period of six months for disposal of the application for rectification would not be applicable, when the power is exercised on the application filed by the aggrieved party, the order passed by the tribunal cannot be sustained - Appeal is allowed - 54 of 2008 - - - Dated:- 22-1-2011 - V.G. Sabhahit, Subhash B. Adi and K. Govindarajulu, JJ. REPRESENTED BY : Shri Kiran S. Javali, Advocate, for the Appellant. Shri N.R. Bhaskar, CGSSC, for the Respondent. [Judgment per : V.G. Sabhahit, J.]. This matter is placed before this Bench for answering the question of law, as to whether the Division Bench decision of this Court in Commissioner of Central Excise, Bangalore-III v. Denso Kirloskar Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Industry Private Limited referred to above. It is the contention of the learned counsel appearing for the appellant that, the interpretation of Section 35C(2) of the Central Excise Act as per the decision of the Division Bench in the said case of Denso Kirloskar requires reconsideration in view of the decision of the Hon ble Supreme Court, wherein, the principle has been laid down while interpreting the identical provision of Section 254 of the Income Tax Act, 1961 and it has been clearly held that, the Section comprises of two parts and the limitation of four years prescribed for exercising the power of rectification of the order applicable only where the authority of the tribunal proceeds to exercise suo-moto power and it is not applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIDED that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the other party, shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard. The provisions of Section 254(2) of the Income Tax Act reads as follows : The Appellate Tribunal, may at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. 9. It is clear from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification was made within four years. Application was well within four years. It is the Tribunal which took its own time to dispose of the application. Therefore, in the circumstances, the High Court had erred in holding that the application could not have been entertained by the Tribunal beyond four years. Para 10. In this connection, our attention is also invited to the Judgment of the Rajasthan High Court in the case of Harsnvardhan Chemicals and Minerals Ltd. v. Union of India and Another, (2002 (256) ITR 767) wherein an identical controversy arose for determination and the view taken by that Court was as follows :- Once the assessee has moved the application within four years from the date of appeal, the Tribunal cannot reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench of this Court in Commissioner of Central Excise, Bangalore-III v. Denso Kirloskar Industry Private Limited reported in 2008 (224) E.L.T. 207, wherein the Division Bench has held that, the application for rectification though filed in time, has not been disposed of within six months, same would become infructuous and no order can be passed after six months from the date of the order which is sought to be rectified, does not lay down the correct law and is required to be overruled. Accordingly, following the principles laid down in the Hon ble Supreme Court in Sree Ayyanar SPG. WVG. Mills Ltd. v. Commissioner of Income Tax reported in 2008 (229) E.L.T. 164 (S.C.) = 2009 (16) S.T.R. 664 (S.C.), we hold that, the decision of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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