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Saraf Exports, Jhunjhunu vs Department Of Income Tax

Income Tax Appellate Tribunal10 April 2015

Ratio decidendi

The rule this decision rests on

The Tribunal's reasoning rests on the following principles, stated in the order the court takes them: A miscellaneous application under section 254(2) of the Income Tax Act, seeking rectification of an earlier order of the Tribunal on the ground that the Tribunal failed to consider a decision of the Supreme Court, is dismissed where the Tribunal had in fact considered that decision in its earlier order and decided the issue in accordance with the amended statutory provision; a mistake of the kind that can be rectified under section 254(2) must be apparent from the record, and the Tribunal's reasoning in deciding the issue on a considered basis is not such a mistake.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

,e-,-la-44@tsih@14&eSallZ ljkZQ ,DliksVZl~] ljnkj'kgj Avk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqjINCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] yscL; ds le{k (BEFORE SHRI R.P. TOLANI AND SHRI T.R.MEENA) M.A. No.44/JP/2014 (A/o ITA No.390, 679/JP/13 & C.O. 30,52/JP/13) Assessment Year : 2009-10 PAN : AATFS 9394N

The Dy.Commissioner of Income Tax, Vs. M/s.Saraf Export, Jhunjhunu. Sardarshar. vihykFkhZ@Appellant izR;FkhZ@Respondent M.A. No.45/JP/2014 (A/o ITA No.739/JP/12) Assessment Year : 2009-10 The Asstt.Commissioner of Income Tax, Vs. M/s.Saraf Export, Circle, Jhunjhunu. Sardarshar. vihykFkhZ@Appellant izR;FkhZ@Respondent M.A. No.46/JP/2014 (A/o ITA No.819/JP/13) Assessment Year : 2009-10 The Asstt.Commissioner of Income Tax, Vs. M/s.Saraf Seasoning Udyog, Circle, Jhunjhunu. Sardarshar. vihykFkhZ@Appellant izR;FkhZ@Respondent

foHkkx dh vksj ls@Department by : Sh.Kailash Mangal (JCIT) fu/kkZfjrh dh vksj ls@Assessee by : Sh.Suresh Ojha & D.S.Bohra, (Adv.)

lquokbZ dh frfFk@Date of Hearing : 10.04.2015 ?kks"k.kk dh frfFk@Date of Pronouncemtnt: 10.04.2015 ,e-,-la-44@tsih@14&eSallZ ljkZQ ,DliksVZl~] ljnkj'kgj - 2- vkns'k ORDER PER T.R.MEENA, AM:-

The revenue filed M.A. in all the cases wherein it has been contended that

Hon'ble ITAT, Jaipur Bench in its order ITA No.390/JP/2013, C.O. 13/JP/13 and ITA

679/JP/13, C.O.53/JP/13 dated 27.12.2013 has not considered the Hon'ble

Supreme Court decision in case of Liberty India 317 ITR 218(SC) that duty draw

back income is not part of 80IB deduction & resulted Platently wrong & improper

decision given by the Hon'ble ITAT in all the cases (A/o ITA No. 390, 679/JP/13 &

C.O. 30, 52/JP/13, 739/JP/12, 819/JP/13) which is apparent mistake on the part of

Hon'ble ITAT.

2. The Ld.A.R. for the assessee's file written submission and argued that

application submitted by the A.O. u/s 254(2) of the IT Act is not at all an

application. The order passed by the Hon'ble Tribunal is a conscious order

therefore the application is not at all application in para 2 of this revenue M.A.

worded the application that Hon'ble ITAT's order in case of the assessee's

"patently wrong and improper due to following reasons". The language of

application itself stated that the view which is in favour of department must

have been taken.

,e-,-la-44@tsih@14&eSallZ ljkZQ ,DliksVZl~] ljnkj'kgj

- 3-

The department wants to dected his condition for accepting the application in

the moreover in which the department wants. The department had admitted

that matter is debatable which can not be rectify u/s 254(2) of the IT Act by

relying Hon'ble Supreme Court decision in case of Vokard India 82 ITR 50 further

department has admitted as under :-

"Further it is a trite that when any amended provision is not considered or for that matter any relevant provision of the Act is not considered while giving a judgment, it is treated as in per curium........................"

3. The Hon'ble Tribunal had considered the judgement Liberty India (supra) in

above decision. Therefore he requested to impose cost on AO for not drafting

proper application for rectification with respect to Hon'ble ITAT's order u/s 254(2)

of the IT Act and same may be dismissed. He further relied upon following cases:-

1. ITA No.22 & 23/Jodh/2012 M/s.Saraf Export,

2. 82 ITR 50 T.S.Balram

3. 237 ITR 165 Keshari Metal Pvt.Ltd.,

4. 192 ITR 252 Indian Steel & Wire Product

5. 247 ITR 274 Prakash Chand Nahta

6. 168 ITR 809 ITO Vs. ITAT

7. M.A.49/Jodh./2008 Choksi Heraeus P.Ltd.,

8. M.A. 10/JU/2009 Hanumangarh Kray Vikray Sah.Sam.

9. 72 Taxmann 43 Kamalakshi Finance Corpn.Ltd.,(SC)

4. We have heard the rival submission of both the parties and perused the

material available on record. This Bench has considered the Hon'ble Supreme ,e-,-la-44@tsih@14&eSallZ ljkZQ ,DliksVZl~] ljnkj'kgj

- 4-

Court decision in case of Liberty India (supra) in assessee's case and decided issue

as per the amended provision of 80IB of the IT Act. Therefore we dismiss all the

three M.A.s filed by the revenue.

Order pronounced in the open Court on 10.04.2015

Sd/- Sd/-

(R.P.TOLANI) (T.R.MEENA) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

t;iqj@Jaipur, fnukad@Date : 10/04/2015

*Basant*

vkns'k dh izfrfyfi vxzfs "kr@Copy of the order forwarded to :-

1- mik;qDr vk;dj] >q> a uq @ wa The DCIT, Jhunjhunu. 2- eSallZ ljkZQ ,DliksVZ] ljnkj'kgj@M/s.Saraf Export, Sardarshar. 3- foHkkxh; izfrfuf/k] t;iqj@The D.R. ITAT, Jaipur 4- xkMZ QkbZy@The Guard File (in M.A. No.44/JP/2014)

vkns'kkuqlkj By Order

lgk;d iathdkj@Assistant Registrar

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