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TMI Blog2016 (10) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be chargeable to tax. Once this was done the expenditure on account of fringe benefits would automatically stand reduced to 40 per cent. (b) The prayer for leave to withdraw the appeal was, made, based on the earlier views taken by the Tribunal holding that Income Tax Rule-8 had no applicability in the matter of fringe benefit tax. (c) It does not appear that the learned Tribunal was alive of the fact that the jurisdictional High Court had already taken a different view. There is, as such, no doubt that the order was prayed for and passed under a mistaken belief that Income Tax Rule-8 had no applicability to the fringe benefit tax. We already have demonstrated that the mistake is apparent. True, it is that it might not have been a mistake on the part of the Tribunal but the Tribunal obviously was not aware of the judgement of the jurisdictional High Court passed on 3rd July, 2014. Had it been aware of the judgement, it would have, in fairness we believe, brought this fact to the notice of the assessee. The assessee obviously was not aware. Therefore, the prayer for leave to withdraw the appeal and the order allowing the prayer were both based on a mistake. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligible expenses of a company engaged in the business of cultivation, manufacturing and sale of tea for the purpose of Fringe Benefit Tax. The learned Tribunal had during the pendency of that appeal considered that point and held against the assessee in other matters. The point, however, travelled to the High Court and in the case of Apeejay Tea Ltd. v. CIT reported in (2015) 370 ITR 775 (Cal), it was held as follows: The amount of expenditure incurred by the assessee-employer in extending fringe benefits to its employees was not solely for the purpose of business. The expenditure incurred was both for the purpose of business and for the purpose of agriculture. The submission that the expenditure on account of fringe benefits had already been taken into account was not correct. The net profit and loss of the business had to be arrived at after deducting all the expenses. Once that was done 40 per cent. of the net profit and loss had to be worked out which shall be chargeable to tax. Once this was done the expenditure on account of fringe benefits would automatically stand reduced to 40 per cent. The aforesaid judgement was rendered on 3rd July, 2014 of which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in confirming the said order. Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for. Mr. Agarwal, learned advocate for the revenue, submitted that there can be no question of any mistake because the order dismissing the appeal was passed on the basis of the prayer of the appellant himself. There is, as such, no question of any error or any mistake. In the absence whereof, power under section 254(2) could not have been exercised. The learned Tribunal passed a correct order which should not be interfered with. He, in support of his submission, relied on the following judgements:- The first judgement relied upon by him is in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal,M.P. reported in AIR 1987 SC 88 wherein the question was whether a writ petition can be presented after an earlier writ petition on the self same cause of action was withdrawn without leave to apply afresh. That question was answered in the negative. This judgement, in our opinion, has no manner of application to the facts and circumstances of the case. The second judgement cited by Mr. Agarwal is in the case of Jagt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 254(2). The appellant in that case had elected his remedy. It is in that view of the matter that he was not permitted to revive the appeal or to maintain an appeal afresh. The following facts in the case before us are not disputed nor are they disputable:- (a) The prayer for not pressing the appeal was made on 30th November, 2015 in ignorance of the judgement passed by the jurisdictional High Court on 3rd July, 2014; (b) The prayer for leave to withdraw the appeal was, made, based on the earlier views taken by the Tribunal holding that Income Tax Rule-8 had no applicability in the matter of fringe benefit tax. (c) It does not appear that the learned Tribunal was alive of the fact that the jurisdictional High Court had already taken a different view. There is, as such, no doubt that the order was prayed for and passed under a mistaken belief that Income Tax Rule-8 had no applicability to the fringe benefit tax. Section 254(2) provides as follows:- The Appellate Tribunal may, at any time within (six months from the end of the month in which the order was passed), with a view to rectifying any mistake apparent from the record, amend any order passed by it under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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