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TMI Blog2020 (12) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... present case. The assessee through this M.A. is requesting the Tribunal to modify / rectify the order of the Tribunal which amounts to review of its own order by the Tribunal which is not permissible in law. As we have held in above paras, that there is no apparent mistake in the order of the Tribunal so far as the ground relating to 6 to 12 by the Revenue, the M.A. filed by the assessee being devoid of merit is dismissed. - MA NO. 05/PNJ/2019 In I.T.A. No. 92//PNJ/2015 - - - Dated:- 24-12-2020 - Sh. R. K. Panda, Accountant Member And Ms Suchitra Kamble, Judicial Member For the Applicant : Sh. Ajay Vohra, Sr. Adv And Sh. Sachit Jolly, Adv For the Respondent : Sh. F. R. Meena, Sr. DR ORDER PER SUCHITRA KAMBLE, JM This Misc. Application under Section 254(2) of the Income Tax Act, 1961 is filed on 24.04.2019 by the assessee in respect of rectification of order dated 10.09.2015 passed by the Tribunal. 2. The Ld. AR referring to the contentions of the Misc. Application drew the attention of the Bench to the same which reads as under: BACKGROUND FACTS: A. Proceedings for AY 2009-10 A.1 At the outset, it would be pertinent to take note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d crude ore i.e. ROM from outside parties i.e. from mining belonging to the other parties. The price paid by the assessee to these outside parties, in our opinion can be regarded to be the best evidence for determining the market value of the crude ore used by the assessee extracting it from its own mines. Since determination of market value requires verification on the part of the revenue, we, therefore, restore this issue only for determining the market value of the crude ore consumed by the assessee on the basis of the value paid by the assessee for the crude ore to the outside parties during the year and thereby recomputing the profit derived by the assessee from the 100% EOU units eligible for exemption u/s 10B. Accordingly, we direct the Assessing Officer to recomputed the exemption available u/s 10B to the assessee in respect of Amona as well as Chitradurga units after ascertaining the market value of the crude ores transferred by the assessee to these units from its extraction divisions on the basis of the average market value as the assessee has paid to the outside parties for the crude ores purchased by the assessee from these parties during the impugned assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the AO. The said appeal is still pending adjudication. B. Proceedings for AY 2010-11 B.1 In ITA No. 92/PNJ/2015, the Revenue has challenged the order of the CIT(Appeals) for AY 2010-11 on various grounds (total 19 grounds of appeal), which, inter-alia, included grounds of appeal nos. 6 to 16 dealing with issue relating to claim of deduction under Section 10B of the Act, which have been remanded back by the Hon ble Tribunal back to the file of the CIT(A) for read-judication. The discussion, in this regard, is recorded in paras 14 to 16 of the Impugned Order which reads as under: 14. In respect of ground nos. 6 to 12 of the Revenue s appeal which is against the action of the ld. CIT(A) in granting deduction u/s 10B of the Act and ground nos. 13 to 16 which is against the computation u/s 10B, it was submitted by the ld. DR that the ld. CIT(A) had not considered the new evidences provided by the AO when deciding the issue. The ld. DR drew our attention to para 8.3 at page 55 of the order of the ld. CIT(A) wherein the ld. CIT(A) has categorically held that he was not considering the new evidences insofar as the A.Y 2009-10 was the first year of the claim of deduction u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the file of the CIT(A) for read-judication in line with his decision for the AY 2009-10. B.2.3 in Para-16, the Hon ble Bench had restored the entire issue in grounds of appeal nos. 6 to 16 relating to claim of deduction under Section 10B of the Act back to the file of the CIT(Appeals) on the above purported admission of the AR that the appeal for AY 2009-10 is under adjudication before the CIT(A) and that fresh evidences have been found in the course of survey conducted after the order of the Tribunal which has been followed by the ld. CIT(A) . Mistakes Apparent from Record rectification of which is sought C.1 In the light of the aforesaid factual background, it is respectfully submitted that following mistakes apparent from record have been crept in the Impugned Order dated 10.09.2015 passed by the Hon ble ITAT for AY 2010-11: C.1.1 In Para-16, the Hon ble Bench has noted that it was admitted that the appeal for AY 2009-10 is under adjudication before the CIT(A) and the fresh evidences filed by Revenue is based on the survey conducted after the order of the Tribunal. C.1.2 In this regard, it would be noted that in para-15, the reference made by the AR of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Hon ble Bombay High court in case of CIT vs. Western Outdoor Interactive (P.) Ltd. (2012) 349 ITR 309 wherein it is held that benefit of deduction under Section 10A is available for a particular number of years on satisfaction of certain conditions under provisions of Act, and unless relief granted for first assessment year in which claim is made and accepted, is withdrawn or set aside, the AO cannot withdraw relief for subsequent years. The Ld. AR further referred to the decision of the Hon ble Bombay High Court in case of CIT vs. Paul Brothers (1995) 216 ITR 548 wherein the Hon ble High Court held that where relief granted under Section 80HH or 80J for an earlier assessment year on the same ground has become final, same relief cannot be withheld for subsequent assessment years without withdrawing relief for earlier assessment year. The Ld. AR also while referring to the decision of the Hon ble Supreme Court in case of Honda Siel Power Products Ltd. vs. CIT (2007) 295 ITR 466 (SC), drew the attention of the Bench to Para 12 and 13 of the order which reads as under: 12. As stated above, in this case we are concerned with the application under Section 254(2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in rectifying its mistake, which had been done in the present case. The Ld. AR accordingly, submitted that since the contents of the Misc. Application is self explanatory, therefore, in view of the decisions cited above, the Misc. Application filed by the assessee should be allowed by modifying the order dated 10.09.2015 of the Tribunal. 3. The Ld. DR, on the other hand, strongly opposed the Misc. Application. The Ld. DR submitted that first of all there is a delay of 1130 days in filing of the Misc. Application and therefore, on this count itself the Misc. Application should be dismissed as barred by limitation. The Ld. DR further submitted that the Tribunal after considering the rival arguments from both the sides and considering the fact that appeal for A.Y. 2009-10 was pending before CIT(A) for adjudication on the basis of new evidences found during the course of survey, had restored the matter to the file of the CIT(A). Therefore, there is absolutely no apparent mistake in the order of the Tribunal. The assessee through this Misc. Application is requesting the Tribunal to review its own order which is not permissible in law. So for the various decisions relied by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e should not have been dismissed by Tribunal. In view of our above discussion, we hold that there is no delay in filing the present M.A. Therefore, we are proceedings with the merit. 5. So for as the merit of the case is concerned, it is an admitted fact that the then AR while arguing the matter before the Tribunal had submitted that the appeal for the A.Y. 2009-10 was pending before the CIT(A) and the hearing for the same is also concluded though the order was not received. It was also submitted by him that fresh evidences produced by the AO which is found during the course of the survey on the assessee, were also produced before the CIT (A). It was also his argument that the issue be restored to the file of the CIT(A) for re-adjudication in line with his decision for A.Y. 2009-10. After considering the rival arguments made by both the sides, the Tribunal restored the issue to the file of the CIT(A) for re-adjudication of the issue relating to claim of deduction under section 10B. For sake of clarification we are reproducing para 15 16 of the order of the Tribunal which read as under: 15. In reply, the ld. AR submitted that the appeal for the A.Y. 2009-10 was pending bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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