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TMI Blog2012 (2) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... own by the earlier Divisional Bench decision has not been applied by the present Bench, therefore, there is a mistake apparent from the record. 4. He submitted that during the course of assessment proceedings, it was brought to the notice of the assessing officer that the assessee invested up to 31-3-2006, an amount of Rs.1,24,68,800/- and further, an amount of Rs.25,31,200/- was invested before the due date of filing of the return i.e., before 30-6-2006, therefore, an aggregate amount of Rs.1,50,00,000/- was invested before the due date of filing of the return of income and subsequently, an amount of Rs.1,56,98,000/- was invested by obtaining a loan from State Bank of India. While filing the original return as observed by the assessing officer a claim of exemption of Rs.2,10,16,139/- was made and subsequently a revised return was filed, reducing the claim of deduction under section 54F to Rs.1,31,90,045/-, which has been allowed by the Commissioner, considering the rationale of the judgment of the Hon'ble A Bench in the case of ITO vs. R. Preeta Devi and two others. The provisions of section 54(4) of the I T Act are not attracted in respect of claim of Rs.1,31,90,045/-. 5. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinarily respect ano0ther Divisional Bench of co-ordinate jurisdiction but if it differs, the case should be referred to a Full Bench. This procedure would avoid unnecessary conflict and confusion that otherwise would prevail. In the case of JKT Fabrics (P) Limited vs. DCIT 004 SOT 0084 (Mum-Trib), it was held that " A decision, which is per incuriam, is not a binding judicial precedent, it is also well-settled that when it is not open to a High Court Bench to differ from the decision of a Bench of equal strength, it cannot also be open to a Bench of the Tribunal to differ from the view taken by a co-ordinate Bench of equal strength." 9. In view of the above, it was submitted that there is an inadvertent omission in the order of the Tribunal in not taking account the rationale laid down by the earlier Bench and hence it is prayed to recall the order of the Tribunal and decide the issue by following the order of the earlier Bench of the Tribunal. 10. On the other hand, the learned departmental representative while opposing the submissions of the learned counsel for the assessee not agreed with the recalling/reviewing of the Tribunal and relied on the order of the Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of transfer in either case by utilizing the sale proceeds of land. Further, for qualifying for exemption, the assessee should have, before the date of filing return, deposited the net sale consideration received in a nationalized bank in terms of the section 54F(4) and the receipts should have been produced along with the return filed. The counsel for the assessee on the other hand, contended that in order to qualify for exemption, there is no need to utilize the sale consideration towards the construction cost of the house and it is enough during the period of three years, equivalent amount is invested in the construction of the house. According to the assessee's counsel, the assessee admittedly had constructed new house within three years from the date of transfer of the property and therefore is eligible for exemption. On going through section 54F, particularly sub-section 4, in order to qualify for exemption on capital gains, before the last date for filing return, the net sale consideration should have been deposited in any bank account specified by the Government for this purpose. In fact, the requirement of subsection 4 of section 54F is that the assessee should produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 14. The scope and ambit of application of section 254(2) is very limited. The same is restricted to rectification of mistakes apparent from the record. We shall first deal with the question of the power of the Tribunal to recall an order in its entirety. Recalling the entire order obviously would mean passing of a fresh order. That does not appear to be the legislative intent. The order passed by the Tribunal under section 254(1) is the effective order so far as the appeal is concerned. Any order passed under section 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining un-amended is the effective order for all practical purpose. An order under section 254(2) does not have existence de hors the order under section 254(1). Re-calling of the order is not permi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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