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TMI Blog2018 (2) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... is structured and in the final view/direction given after considering the decision of the Delhi High Court in Logitronics P.Ltd. (2011 (2) TMI 12 - DELHI HIGH COURT) it does prima facie appear to us, have been influenced by it. In the present case, Tribunal while dealing with the rectification application, must deal with the Petitioner's grievance that the Delhi High Court's decision in Logitronics P.Ltd. (supra) does not apply to the present facts. We are satisfied that the above aspect has to be considered while disposing of the rectification application in the present facts. Restore each of the Petitioner's rectification application to the Tribunal for fresh consideration. This restoration is only to reconsider the Petitioner's grieva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 254(1) of the Act. 3. At the very outset, the Respondent raised an objection to the Petition being entertained to the extent it challenges the order dated 28 March 2016 passed under Section 254(1) of the Act. This, on the ground of an efficacious alternate remedy of an Appeal under Section 260A of the Act being available and also on account of delay. In response, Mr. Mistri, learned Senior Counsel for the Petitioner, states that the challenge in this Petition is being restricted only to the order dated 19 May 2017 passed by the Tribunal under Section 254(2) of the Act, i.e. on the Petitioners' application for rectification. Thus, the Petitioners challenge to the order dated 28 March 2016, stands withdrawn. 4. The g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of waiver, had already been taken in the earlier part of the impugned order dated 28 March 2016. Thus, the reference to the decision of the Delhi High Court would not in any manner affect/impact the reasoning and the conclusion in the common order dated 28 March 2016. Therefore, it is submitted that the impugned order dated 19 May 2017 dismissing the rectification application, calls for no interfere. 6. In Rejoinder, Mr. Mistri, learned Senior Counsel for the Petitioner, disputes the above position. According to him, the decision of Delhi High Court in Logitronics P.Ltd. (supra), from a bare reading of the order dated 28 March 2016, it has influenced the final decision. 7. In the above context, it would be appropriate to extrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee from the bank was utilised for the purpose of acquiring capital assets. On the contrary, the material on record indicated that the assessee had obtained the loan or credit facility by way of hypothecation of finished goods, semifinished goods, raw material, book debts, receivable claims, securities and rights by way of first charge which indicated that the assessee had obtained the loan facility for its business activity or trading operations. On the question whether the whole amount of the loan had been utilised either for the purpose of acquiring a capital asset or for the purpose of business activity or trading activity the Tribunal remitted the matter to the Assessing Officer for fresh adjudication. The Tribunal had rightly c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fresh consideration before the Tribunal. We clarify that it cannot be laid down as an inflexible proposition of law that an order of remand on a miscellaneous application under Section 254(2) would be warranted merely because the Tribunal has relied upon a judgment which was not cited by either party before it. In each case, it is for the Court to consider as to whether a prima facie or arguable distinction has been made and which should have been considered by the Tribunal. It is in this view of the matter that we had called upon counsel appearing on behalf of the assessee to at least prima facie indicate before this Court the grounds on which the decision in Khandwala Finance Limited was sought to be distinguished. If we were to be of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in Logitronics P.Ltd. (supra) does not apply to the present facts. We are satisfied that the above aspect has to be considered while disposing of the rectification application in the present facts. 11. In the above view, we set aside the common impugned order of the Tribunal dated 19 May 2017 and restore each of the Petitioner's rectification application dated 6 September 2016 to the Tribunal for fresh consideration. This restoration is only to reconsider the Petitioner's grievance in respect of reference/reliance upon the Delhi High Court decision in Logitronics P.Ltd. (supra) in the common impugned order dated 28 March 2016 and pass appropriate order on the rectification application. 12. All three Petitions dispose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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