IN THE INCOME TAX APPELLATE TRIBUNAL
CHANDIGARH BENCHES `B' CHANDIGARH
BEFORE SHRI H.L.KARWA, HON'BLE, VICE PRESIDENT
AND SHRI T.R. SOOD, ACCOUNTANT MEMBER
MA No. 28/Chd/2010
(In ITA No. 781/Chd/2006)
Assessment Year: 1999-2000
M/s Abhishek Industries Ltd., Vs The ACIT, Range-1,
Ludhiana Ludhiana
(Appellant) (Respondent)
Appellant By : Shri Ashwani Kumar
Respondent By : Shri N.K. Saini
Date of hearing : 06.07.2012
Date of Pronouncement : 09.07.2012
ORDER
PER H.L.KARWA, VP
This M isc. Application preferred by the assessee arises out of the order
of the Tribunal dated 24.6.2009 passed in ITA No. 781/Chd/2006 relating to
assessment year 1999-2000.
2. The assessee vide its application dated 31.10.2009 has stated as under:-
"Before the Income-tax Appellate Tribunal,
Chandigarh
Bench `B'
Chandigarh
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Sub:_ Misc Application u/s 254(2) in ITA No. 781/Chandi/2006
for assessment year 1999-2000 in the case of M/s
Abhishek Industries Ltd. Ludhiana
Sir,
Respectfully the following is submitted for your Honour's Kind
consideration and necessary perusal:-
That the above captioned appeal was adjudicated upon by the
Hon'ble Bench vide order dated 31.7.2007.
That the petitioner filed a Misc. Application against the said
order dated 29.04.2008 on 25.06.2008
That vide order passed in response to the Misc. Application, the
earlier order passed was recalled by the Hon'ble Bench.
That during the cour se of hearing and even vide the earlier Misc.
Application, it was submitted that although the issue involved in
the appeal is covered against the assessee, the request for
applicability of provisions of section 158A be kindly considered
and a specific request was also made during he course of hearing
of the appeal.
That due to some inadvertent error the same seems to have
skipped the notice of the Hon'ble Bench.
It is humbly prayed that the order dated 24.6.2009 passed by
Hon'ble Bench be kindly recalled and request for consider ation of
applicability of provisions us/ 158a be kindly considered.
Thanking you,
Yours faithfully,
For Abhishek Industries Ltd.
Sd/-
Dated 31.10.2009 Authorized Signatory "
3. We have heard the Ld. Representatives of both the parties at length and
have also carefully gone through the contents of the above Misc. Application.
It is observed that the appeal of the assessee i.e. ITA No.781/Chd/2006 for
assessment year 1999-2000 was adjudicated upon by ITAT, Chandigarh
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Bench vide its order dated 31.7.2007 ex. parte. The assessee vide Misc.
Application No. 189/Chd/2008 dated 24.6.2008 requested the Tribunal to
recall its order dated 31.07.2007 and prayed for opportunity of fresh hearing
be afforded to the assessee. In the above application, the assessee submitted
that on merits, the issue involved in the appeal is covered against the
assessee by the judgment of Hon'ble Punjab & Haryana High Court in the
case of Abhishek Industries Ltd 286 ITR 1(P&H). However, the assessee
submitted that applicability of provisions of Section 158A of the Income Tax
Act, 1961 (in short 'the Act') may be considered in the facts and
circumstances of this case. The Tribunal decided the appeal of the assessee
on 24.6.2009 stating that sales tax subsidy amounting to Rs. 2,50,59,653/- is
a revenue receipt following the judgment of jurisdictional High Court in the
case of assessee itself reported in (2006) 286 ITR 1(P&H). However, the
Tribunal inadvertently did not take into consideration the declaration filed by
the assessee u/s 158A(1) of the Act claiming that identical question of law is
pending before the Hon'ble Supreme Court. The Tribunal has also not
considered the no objection certificate submitted by the Assessing Officer as
per the requirements of section 158A of the Act.
4. In our view, the mistake pointed out by the assessee in the order of the
Tribunal dated 24.6.2009 is a mistake apparent from the record. It is well
settled law that when prejudice resulting from an order is attributable to the
Tribunal's mistake, error or omission, it is its bounden duty to set it right.
Shri Ashwani Kumar, Ld. Counsel for the assessee submitted that the
judgment of the Hon'ble Punjab & Haryana High Court in the case of M/s
Abhishek Industries Ltd (supra) still s ubsists but the Special Leave Petition
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(SLP) is pending before the Hon'ble Supreme Court involving identical
question of law as is in the present case. It is an admitted fact that the
assessee has filed a declaration u/s 158A(1) of the Act, agreeing to apply in
the instant case, final decision on the impugned question of law to be laid
down by the Hon'ble Supreme Court. There is no objection by the Assessing
Officer to the request made by the assessee. We observe that the question of
law arising in the instant case is identical to the question raised in the SLP
filed before the Hon'ble Supreme Court arising from the order of the Hon'ble
Punjab & Haryana High Court in the case of M/s Abhishek Industries Ltd
(supra). Therefore, we hold that the decision on the question of law in the
case of Abhishek Industries Ltd (supra) when becomes final, it shall be
applied to the instant case and the Assessing Officer shall, if necessary,
amend the order in accordance with law after affording an opportunity of
being heard to the as sessee.
The observations made in para 4 above may be read as a part of order
dated 24.6.2009 passed in ITA No. 781/Chd/2006.
5. In the above terms, t he Misc. Application filed by the assessee is
allowed.
Order Pronounced in the Open Court on this 9 t h day of July, 2012
Sd/- Sd/-
(T.R.SOOD ) (H.L.KARWA)
ACCOUNTANT MEMBER VI CE PRESIDENT
Dated : 9 t h July, 2012
Rkk
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Copy to:
1. The Appellant
2. The Respondent
3. The CIT
4. The CIT(A)
5 The DR
True Copy
By Order
Assistant Registrar
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