9911796707
TMI Blog2018 (8) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... n Versus Asst. Commissioner of Income Tax, Sri Ganganagar decided on 25.01.2018 which reads as under:- "1. By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee. 2. While admitting the appeal, this Court framed following substantial question of law :- "(i) Whether in the facts and circumstances of the case, the impugned order dated 27.03.2002, passed by the Tribunal is erroneous wherein the Tribunal has held that investment allowance is not available to the assessee, as it is engaged in mining raising, loading and transporting of gypsum from mines owned by RSMM Ltd. and no manufacture or production of any article or things takes place? (ii) Whether in the facts and circumstances of the case, subsequent judgment of Hon'ble Supreme Court rendered in case of CIT Vs. Sesa Goa Ltd. (2004) 271 TTR 331 does amount to an error apparent on the face of record and the learned Tribunal was required to amend/ correct its order in light of final verdict of Hon'ble Supreme Court by way of rectification?" In view of the decisions in (2005) 272 ITR 397 (BOM) (Chem Amit vs. Asst. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the merits of the contentions of the parties by the Tribunal on a substantial question of law is subject to the statutory right of appeal under section 260A of the Act. This right cannot be by-passed by dealing with the merits in an miscellaneous application for rectification. 8. In the above view, we set aside the impugned order dated March 14, 2008 of the Tribunal. We direct the Tribunal to recall its order dated May 9, 2006 to the extent it upheld the order of the Assessing Officer imposing penalty under section 221 of the Act and post the appeal for hearing at a date convenient to it. Needless to state the petitioner's appeal in respect of only the above issue would be decided after hearing the parties. The other issues would not be re-decided as they stand concluded by the order dated May 9, 2006. 2. In Commissioner of Income Tax Vs. Saroop Tanneries Ltd. [2015]374ITR20(P&H) wherein it has been held as under:- 2. The Tribunal had passed an order dated June 30, 2010, in M.A. No. 46 (ASR) of 2009. The Tribunal corrected a mistake on account of not having noticed the judgment of the Supreme Court in CIT v. Amalgamations P. Ltd. MANU/SC/2138/1997 : [1997] 226 ITR 188 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) amending the order passed in appeal, the same can be assailed in further appeal on substantial question of law. 24. At this juncture, Mr. Mehta submitted that if the assessee is not in a position to prefer an appeal, he will be left remediless. The said submission deserves to be dealt with. When the appeal is not maintainable, in our considered opinion, the same can be challenged by way of writ petition under Articles 226 and 227 of the Constitution of India. Mr. Mehta further submitted that if this Court is of the view that writ would lie, permission should be granted to convert the appeal to the writ petition. In this context, we may refer with profit to the decision rendered in Col. Anil Kak (Retd.) v. Municipal Corporation, Indore & Ors., AIR 2007 SC 1130 wherein the Apex Court has expressed thus: "All that the High Court has done is to treat the petition filed before it under Section 115 of the Code as a proceeding initiated under Article 227 of the Constitution of India. The respondents had filed the revision originally and during the pendency of that revision the High Court appears to have taken a view that an order in an appeal arising from a proceeding under Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee to establish that debts in question had really turned bad is no longer there after 01.04.1989 and it is left to the business prudence of the assessee to claim such deduction by merely writing off such advances or debts as bad debts in the Books of Accounts and debiting the same in the P&L account of me assessee Otherwise, any advance would have been shown on the assets side of the Balance Sheet under the heading of 'Debtors' or 'Loan & Advances' under the heading Current Assets. So long as the outstanding debt is shown on the Assets side of the Balance Sheet, there is no question of claiming the same as deduction from profit and gains of the business computed under Section 28 of the Income Tax Act, It is only when such a debt or advance turns bad or irrecoverable, in the opinion the assessee, as per amendment in law after 01.04.1989, a simple book keeping entry to write off the same is enough to entitle the assessee to claim such a deduction. It is not in dispute from the side of the Revenue that such a write off entry was made in the present case by the assessee in its Books of Accounts In case even after such a writing off entry is made, if assessee re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment and order passed by the learned Tribunal which is sought to be rectified, they preferred appeal, which has been dismissed by the Division Bench on merits. Shri Shah, learned counsel for the petitioner is not in a position to dispute the above. Under the circumstances, now it is not open for the petitioner to contend that despite the dismissal of appeal by this Court, rectification application would be maintainable, on issues/grounds, which came to be earlier considered by the Division Bench while deciding the Tax Appeal No.653 of 2012 under the guise of the rectification, the petitionerassessee cannot have the second round of litigation on the same ground/issue which earlier came to be considered by the Division Bench of this Court and Division Bench dismissed the appeal on merits confirming the judgment and order passed by the learned Tribunal passed in ITA No.675 of 2010." 4. He has also taken us to the following provisions:- "IT ACT Section 260 A - 260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orandum of appeal precisely stating therein the substantial question of law involved. SECTION 35C (2) of the Central Excise Act, 1944 (2) The Appellate Tribunal may, at any time within six months 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 amendments if the mistake is brought to its notice by the Commissioner of Central Excise or the other party to the appeal: Provided 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. 5. So far as the appeals where the impugned order and the rectification order is challenged, we made it clear that appeals will be heard only for the original order and for rectification order, the appellant may move a writ petition within a period of two weeks. 8. In this appeal order passed in rectification application is under challenged. We are of the considered opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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