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TMI Blog2013 (8) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) TMI 153 - PUNJAB AND HARYANA HIGH COURT] and in March 2007 delivered by the Hon'ble Supreme Court in CIT VERSUS VINAY CEMENT LTD. [ 2007 (3) TMI 346 - SC ORDER] . The said decisions were prior in point of time to the decisions of the Tribunal on 5th Nov. 2007 and 23rd Nov., 2007 - HELD THAT : - Non-consideration of the decision of the jurisdictional High Court or of the Supreme Court would constitute mistake apparent from the record and such mistake can be rectified u/s 254(2) by the tribunal. The Tribunal was in error in declining to rectify the mistake which was apparent on the face of the record. Decision in the case of- ASSISTANT COMMISSIONER, INCOME TAX, RAJKOT VERSUS SAURASHTRA KUTCH STOCK EXCHANGE LTD [ 2008 (9) TMI 11 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der s. 254(2) of the Act, therein in the case of the present assessee firm was right in law in dismissing the 'miscellaneous application' filed by the latter, for the reason that as the order of the Hon'ble Supreme Court was not brought to the notice of the Tribunal during the course of the appellate proceedings, therefore the same would not constitute a 'mistake apparent from record' ? 4. Put shortly, the facts necessary for adjudication of the present appeal as narrated therein are that the assessee is a partnership firm carrying on the business of manufacturing and export of rubber goods at Jalandhar under the name and style of M/s R.M. Exports. The assessee-filed its return on 24th Nov., 2003 for the asst. yr, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o approach this Court by way of instant appeal. 5. Learned counsel for the appellant submitted that this Court in CIT v. Avery Cycle Industries (P.) Ltd. [2007] 292 ITR 198 on 5th Sept. 2006 had held that the proviso to s. 43B was retrospective and no disallowance could be made if the payment had been made before the due date prescribed under s 139(1) of the Act. According to the learned counsel, the Hon'ble apex Court in CIT v. Vinay Cement Ltd. [2007] 213 CTR (SC) 268 had concluded that any contribution made to the provident fund before filing of the return could not be disallowed under s. 43B of the Act as it stood prior to the amendment w.e.f. 1st April, 2004. Relying upon the judgment of the Hon'ble Apex Court in Asstt. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that a decision of the 'jurisdictional Court' i.e. the High Court of Gujarat in Hiralal Bhagwati (supra) was not brought to the notice of the Tribunal and thus there was a 'mistake apparent from record' which required rectification. 40. The core issue, therefore, is whether non-consideration of a decision of jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a 'mistake apparent from the record' ? In our opinion, both-the Tribunal and the High Court-were right in holding that such a mistake can be said to be a 'mistake apparent from the record' which could be rectified under s. 254(2). 8. In the present case, the assessee had deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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