M/S. THE SANDESH LTD., Ahmedabad V. THE JT.CIT.,SPL.RANGE-9, Ahmedabad

MA 113/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6281 (ITAT-AHMEDABAD)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1992-1993
• Appeal Filed On: 07-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K DHANESTA
• Assessee Lawyers: R C SHAH
• Keywords: Reopening of assessment; Depreciation; Question of law; Difference of opinion; Reason to believe; Change of opinion
• Section: 147; 148; 139

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C AHMEDABAD BEFORE S/SHRI T..K. SHARMA, JM AND D.C.AGRAWAL, AM M/S THE SANDESH LTD., SANDESH BHAVAN, LAD SOCIETY ROAD, VASTRAPUR, AHMEDABAD-380015 VS. JT.CIT,SR-9,AHMEDABAD. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI R. C. SHAH, AR RESPONDENT BY:- SHRI R. K. DHANESTA, DR O R D E R PER D.C. AGRAWAL, ACCOUNTANT MEMBER . IN THIS MISCELLANEOUS APPLICATION FILED BY THE ASS ESSEE IT IS SUBMITTED THAT WHILE PASSING THE ORDER IN THE CASE OF ASSESSEE IN ITA NO.1773/AHD/2003 FOR ASST. YEAR 1992-93 ON THE ISSU E OF REOPENING OF THE ASSESSMENT, WHICH WAS DECIDED AGAINST THE ASSES SEE, THE TRIBUNAL IGNORED CERTAIN VITAL MATTERS SUCH AS OVERLOOKING T HE DECISION OF HON. GUJARAT HIGH COURT IN THE CASE OF HYNOUP FOOD AND O IL INDUSTRIES LTD. VS. ACIT (2008) 307 ITR 115 (GUJ). IT IS ALSO MENTI ONED IN THE MISC. APPLICATION THAT THE DECISION OF HON. DELHI HIGH CO URT IN THE CASE OF CIT VS. KELVINATOR OF INDIA LTD. (DEL)(FB) 256 ITR 1 WA S NOT DISCUSSED IN DETAIL EXCEPT SAYING THAT ASSESSMENT YEAR INVOLVED WAS 1987-88 AND AFTER THE AMENDMENT OF THE PROVISIONS W.E.F. 1.4.1989 THE LAW HAS BEEN SUBSTANTIALLY AMENDED BY WAY OF INSERTION OF NEW PR OVISIONS OF SECTION M.A.NO.113/AHD/2010 IN ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 2 147. THUS THE ASSESSEE IS CONTESTING REOPENING OF T HE ASSESSMENT IN THE MISC. APPLICATION AND IS NOW HEAVILY RELYING ON THE DECISION OF HON. GUJARAT HIGH COURT IN THE CASE OF HYNOUP FOOD AND OIL INDUSTRIES LTD. VS. ACIT (SUPRA). 2. WE HAVE HEARD THE PARTIES. WHILE AFFIRMING THE R EOPENING OF THE ASSESSMENT, THE TRIBUNAL HAD GIVEN FOLLOWING FINDIN GS :- 13. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW REOPENING OF THE ASSESSMENT IS JUSTIFIED BECAUSE ISSUES ON WHICH THE REOPENING HAS BEEN DONE ARE NOT TOUCHED UPON IN THE ORIGINAL PROCEEDINGS. IN THE ORIGINAL P ROCEEDINGS ONLY THE PRIOR PERIOD EXPENSES WERE CONSIDERED AND ADJUSTED. THEREFORE THERE CANNOT BE A CASE OF CHANGE OF OPINION AS TO WHETHER HEAD OFFICE EXPENSES WERE PROPERLY AND REASONABLY ALLOCATED TO BARODA UN IT OR NOT. IT HAS NOT BEEN POINTED OUT BY THE ASSESSEE THAT THE ISSUE OF ALLOCATION OF EXPENDITURE WAS CONSIDERED BY THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND HE WAS SATISFIED ON SUCH ALLOCATION. EXPLANATION 2 OF SECTION 147, AS AMENDED WITH EFFEC T FROM 01-04-1989, PROVIDES THAT IF ALLOWANCES UNDER THIS ACT HAVE BEE N COMPUTED EXCESSIVELY, THEN IT WILL BE THE CASE OF DEEMED ESC APEMENT ASSESSMENT. FOR THE SAKE OF CONVENIENCE WE REPRODUCE SECTION 14 7 OF THE ACT AS UNDER: 147. INCOME ESCAPING ASSESSMENT.--IF THE ASSESSING OFFICER, HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY, SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 1 53, ASSESS OR REASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH H AS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF THE PROCEEDINGS UNDER THIS SECTION, OR RECOMPUTE THE LOSS OR THE DEPRECIATION ALLOWANCE OR ANY OTHER ALLOWANCE, AS THE CASE MAY BE, FOR THE ASSESSMENT YEAR CONCERN ED (HEREAFTER IN THIS SECTION AND IN SECTIONS 148 TO 153 REFERRED TO AS THE RELEVANT ASS ESSMENT YEAR): PROVIDED THAT WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT Y EAR, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF FOUR YEARS F ROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TA X HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON TH E PART OF THE ASSESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THAT ASSESSMENT YEAR. M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 3 EXPLANATION 1.--PRODUCTION BEFORE THE ASSESSING OFF ICER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD WITH DU E DILIGENCE HAVE BEEN DISCOVERED BY THE ASSESSING OFFICER WILL NOT NECESSARILY AMOUN T TO DISCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. EXPLANATION 2.--FOR THE PURPOSES OF THIS SECTION, T HE FOLLOWING SHALL ALSO BE DEEMED TO BE CASES WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT, NAMELY:-- (A) WHERE NO RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE ALTHOUGH HIS TOTAL INCOME OR THE TOTAL INCOME OF ANY OTHER PERSON IN R ESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED TH E MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME-TAX; (B) WHERE A RETURN OF INCOME HAS BEEN FURNISHED BY THE ASSESSEE BUT NO ASSESSMENT HAS BEEN MADE AND IT IS NOTICED BY THE ASSESSING OF FICER THAT THE ASSESSEE HAS UNDERSTATED THE INCOME OR HAS CLAIMED EXCESSIVE LOS S, DEDUCTION, ALLOWANCE OR RELIEF IN THE RETURN; (C) WHERE AN ASSESSMENT HAS BEEN MADE, BUT-- (I) INCOME CHARGEABLE TO TAX HAS BEEN UNDER ASSESSE D; OR (II) SUCH INCOME HAS BEEN ASSESSED AT TOO LOW A RAT E; OR (III) SUCH INCOME HAS BEEN MADE THE SUBJECT OF EXCE SSIVE RELIEF UNDER THIS ACT; OR (IV) EXCESSIVE LOSS OR DEPRECIATION ALLOWANCE OR AN Y OTHER ALLOWANCE UNDER THIS ACT HAS BEEN COMPUTED. 14. LEARNED AUTHORISED REPRESENTATIVE HAS RELIED ON THE SEVERAL DECISIONS AS ABOVE WHICH ARE NOW NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. THE REASONS ARE AS UNDER: IN THE CASE OF SIEMENS INFORMATION SYSTEM LTD. VS. ASSISTANT COMMISSIONER OF INCOME-TAX[2007] 295 ITR 0333- [BOM BAY HIGH COURT]. IN THIS CASE, REASSESSMENT WAS SOUGHT TO BE DONE ON THE BASIS OF ACTION OF THE ASSESSING OFFICER IN SUBSEQUENT YEARS IN NOT ALLOWING DEDUCTION UNDER SECTION 10A. THERE IS NO INFORMATIO N THAT ASSESSMENT WAS SOUGHT TO BE REOPENED ON THE BASIS OF SPECIFIC ITEMS WHICH LED TO HIGHER COMPUTATION OF ALLOWABLE DEDUCTION. IN THE C ASE OF ADANI EXPORTS LIMITED VS. DCIT (SUPRA) ASSESSMENT WAS SOUGHT TO B E REOPENED ON THE BASIS OF OPINION OF THE AUDIT PARTY AND HON'BLE COU RT SOUGHT TO APPLY THE CONCEPT OF INFORMATION AS LAID DOWN UNDER SECTION 1 47(B). IN THE PRESENT CASE, ASSESSING OFFICER HAS IDENTIFIED SPECIFIC ITE MS WHICH LED TO HIGHER COMPUTATION OF ALLOWABLE DEDUCTION. IN GARDEN SILK MILLS PRIVATE LIMITEDS CASE (SUPRA), THE ASSESSING OFFICER HAD A LLOWED IN THE ORIGINAL ASSESSMENT ADJUSTMENT IN THE VALUATION IN CLOSING S TOCK, BUT SUBSEQUENTLY, M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 4 THE ASSESSING OFFICER HELD THAT SUCH ADJUSTMENT WER E ERRONEOUS. THIS WAS HELD TO BE CHANGE OF OPINION. ITEMS OF ADJUSTMENT W HICH RESULTED IN UNDER ASSESSMENT ARE DIFFERENT. THEY ARE NOT CONSIDERED I N THE ORIGINAL ASSESSMENT PROCEEDINGS. 15. IN KELVINATOR INDIA LIMITEDS CASE, ASSESSMENT WAS WITH RESPECT TO ASSESSMENT YEAR 1987-1988 AND HENCE WILL NOT BE APP LICABLE IN RESPECT OF ASSESSMENT YEARS AFTER 01-04-1989 WHEN LAW HAS S UBSTANTIALLY AMENDED BY WAY OF INSERTION OF NEW PROVISION OF SEC TION 147. WHERE EXPLANATION 2 PROVIDES FOR DEEMED ESCAPEMENT OF INC OME. 16. SINCE IT IS NOT A CASE OF CHANGE OF OPINION AND ASSESSING OFFICER HAD SHOWN IN THE REASONS RECORDED THAT DEDUCTION UNDER SECTION 80I HAS NOT BEEN CORRECTLY COMPUTED THEN REOPENING OF THE ASSES SMENT IS JUSTIFIED. THIS GROUND OF THE ASSESSEE IS ACCORDINGLY REJECTED . 3. WHILE NARRATING THE FACTS, THE TRIBUNAL HAS REPR ODUCED THE REASONS RECORDED BY THE AO FOR REOPENING OF THE ASSESSMENT. THE ISSUE INVOLVED WAS THAT ASSESSEE WAS CLAIMING DEDUCTION U/S 80-I I T RESPECT OF BARODA UNIT EVEN THOUGH IT HAD THREE OTHER UNITS AT AHMEDA BAD, RAJKOT AND SURAT. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF P RINTING NEWSPAPERS. THE PROFIT OF BARODA UNIT WAS COMPUTED BY ALLOCATIN G PROPORTION OF TOTAL INCOME AND EXPENDITURE ON CERTAIN BASIS. THE AO THE N FINDING DEFECTS IN THE ALLOCATION BASIS OBSERVED AS UNDER :- (A) THE ASSESSEE HAS NOT ALLOCATED PRINTING EXPENSES AN D FEATURE EXPENSES TO BROAD UNIT. (B) ESTABLISHMENT EXPENSES DEBITED AT THE HEAD OFFICE A T AHMEDABAD HAVE NOT BEEN PROPORTIONATELY ALLOCATED T O BARODA UNIT (C) THE PROPORTION OF SUBSCRIPTION INCOME AND RAW-MATER IAL CONSUMPTION IS NOT CONSISTENT FOR ALL UNITS. (D) INTEREST EXPENDITURE ALLOCATED TO BARODA UNIT IS SU BSTANTIALLY LOWER LOOKING TO THE FACTS AND CIRCUMSTANCES ABOUT VOLUME OF TRANSACTIONS AT BARODA UNIT. M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 5 SINCE THE REOPENING OF ASSESSMENT WAS WITHIN FOUR Y EARS THE TRIBUNAL UPHELD THE GROUND ON WHICH ASSESSMENT WAS REOPENED. IT WAS ARGUED DURING THE COURSE OF REGULAR HEARING BEFORE THE TRI BUNAL THAT THERE IS A CHANGE OF OPINION INASMUCH AS SIMILAR SYSTEM WAS PR EVALENT IN EARLIER YEARS BY THE AO. THERE WAS NO REASON TO DEVIATE FRO M THAT SYSTEM AND TO REOPEN THE ASSESSMENT ON THAT CHANGED BASIS. THE LD . AR SUBMITTED BEFORE US THAT THE DECISION OF HON. GUJARAT HIGH CO URT IN THE CASE OF HYNOUP FOODS & OIL INDUSTRIES LTD. VS. ACIT (SUPRA) IS EXACTLY ON THE POINT ON CHANGE OF OPINION AND AS SUCH ASSESSMENT C ANNOT BE REOPENED. 4. THE LD. DR ON THE OTHER HAND, SUBMITTED THAT REC TIFICATION AT THIS STAGE WOULD AMOUNT TO ONLY CHANGE OF OPINION. HE SU BMITTED THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. FAILURE OF THE TRIBUNAL TO CONSIDER AND ARGUMENT IS NOT A MISTAKE APPARENT FRO M THE RECORD. THE LD. DR RELIED ON THE FOLLOWING AUTHORITIES :- CIT VS. RAMESH ELECTRIC AND TRADING CO. 203 ITR 497 (BOM) ITO VS. ITAT 229 ITR 651 (PATNA) DHARAMCHAND SURANA VS. ITO 61 ITD 115 (ITAT-MAD-TM) HOMI MEHTA & SONS (P) LTD. VS. DCIT 63 ITD 15 (ITA T MUM) 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THERE IS NO MISTA KE WHICH CAN BE RECTIFIED. IN THE PAPER BOOK LD. AR HAD FILED FOLLO WING REFERENCES :- (A) HYNOUP FOOD & OIL INDUSTRIES LTD. VS. ACIT 307 ITR 115, 130 (GUJ) ASST. YEAR 92-93 (B) CIT VS. JAGSON INTERNATIONAL LTD. 18 DTR (DEL) 14 4 (C) CIT VS. PITHAMPUR STEELS (P) LTD. (D) CIT VS. SMT. JYOTI DEVI 218 CTR (RAJ) 264 M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 6 (E) CIT VS. SHREE RAJASTHAN SYNTEX LTD. 217 CTR (RAJ) 2 09 (F) BOARD CIRCULAR NO.549 DT.31.10.1989 PARA 7.2 182 I TR (ST.) 1 BUT DURING THE COURSE OF HEARING HE HAD DRAWN OUR A TTENTION TO ANOTHER JUDGMENT OF HON. BOMBAY HIGH COURT IN SIEMENS INFOR MATION SYSTEMS LTD. 295 ITR 333 (BOM), GARDEN SILK MILLS LTD. 237 ITR 668 (GUJ) AND KELVINATOR INDIA LTD. 256 ITR 1. SINCE THESE PAPE RS ON WHICH DECISION OF HON. GUJARAT HIGH COURT WAS REFERRED TO REMAINED CONFINED IN THE PAPER BOOK, IT WAS NOT DISCUSSED. ALL THOSE DECISIO NS WHICH WERE REFERRED TO DURING THE COURT PROCEEDINGS AND DISCUSSED WERE REFERRED IN THE ORDER OF THE TRIBUNAL. IT IS NOT DISPUTED THAT DECISION O F HON. GUJARAT HIGH COURT IN HYNOUP FOOD & OIL INDUSTRIES (SUPRA) IS ON THE PROPOSITION THAT ASSESSMENT CANNOT BE REOPENED ON CHANGE OF OPINION EVEN IF IT IS WITHIN FOUR YEARS BUT THE TRIBUNAL HAS IN THE IMPUGNED ORD ER GIVEN A FINDING THAT THERE IS NO CHANGE OF OPINION, THEREFORE, ABOVE DEC ISION OF HON. GUJARAT HIGH COURT WOULD NOT BE APPLICABLE. WHETHER ON THE FACTS MENTIONED BY THE AO IN THE REASONS RECORDED IT WOULD AMOUNT TO C HANGE OF OPINION OR NOT IS A QUESTION OF LAW AND ONCE THE TRIBUNAL HAS HELD A VIEW, MAY BE ERRONEOUS IN THE OPINION OF LD. AR, IT CANNOT BE A SUBJECT MATTER OF RECTIFICATION U/S 254(2). IF A FINDING WOULD HAVE B EEN GIVEN IN THE ORDER OF THE TRIBUNAL THAT THERE WAS A CHANGE OF OPINION AND STILL THE MATTER COULD HAVE GONE AGAINST THE ASSESSEE THEN CERTAINLY IT WO ULD HAVE BEEN A MISTAKE APPARENT FROM THE RECORD BUT NOT NOW, WHEN IT IS CLEARLY HELD THAT THERE IS NO CHANGE OF OPINION. FURTHER IF THE REPRE SENTATIVE(S) OF THE PARTIES DID NOT DISCUSS ANY AUTHORITY DURING THE CO URSE OF HEARING BUT SIMPLY FILED THEM IN THE PAPER BOOK REFERRING THERE IN LARGE NUMBER OF AUTHORITIES, THEN THE TRIBUNAL CAN PRESUME THAT THE AUTHORITIES EVEN THOUGH REFERRED TO IN THE PAPER BOOK ARE NOT BE REL IED ON DURING ORAL DISCUSSION. THE ARGUMENTS AND FACTS AND AUTHORITIES RELIED ON DURING ORAL M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 7 ARGUMENTS BEFORE THE TRIBUNAL CARRY GREATER WEIGHTA GE AND IF SOME FACT OR PROPOSITION OF LAW ARE MENTIONED IN THE PAPER BOOK BUT ATTENTION OF THE BENCH IS NOT DRAWN TO THEM AND THE TRIBUNAL DOES NO T CONSIDER THE SAME WHILE DRAFTING THE ORDER THEN IT CANNOT BE SUBSEQUE NTLY SAID THAT A FACT OR PROPOSITION OF LAW AS MENTIONED IN THE PAPER BOOK H AS BEEN IGNORED AND, THEREFORE, BY NOT CONSIDERING THE SAME THERE IS A M ISTAKE APPARENT FROM THE RECORD. EVEN OTHERWISE WE ARE OF THE CONSIDERED VIEW THAT UNLESS A FACTUAL POSITION OR AUTHORITY OF LAW, IF CONSIDERED , WOULD ALTER THE DECISION, THEN BY NOT CONSIDERING THE SAME WOULD BE A MISTAKE APPARENT FROM THE RECORD. BUT WHERE EVEN AFTER CONSIDERING T HE FACT THAT OR ARGUMENT OR PROPOSITION OF LAW THERE CANNOT BE ANY CHANGE IN THE DECISION TAKEN THEN IT CANNOT BE SAID THAT BY NOT CONSIDERIN G THE SAME THERE WAS A MISTAKE APPARENT FROM THE RECORD. 6. THE LD. AR NOW HAS REFERRED TO THE DECISION OF H ON. SUPREME COURT IN ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE L TD. (2008) 305 ITR 227 (SC) FOR THE PROPOSITION THAT FAILURE TO APPLY THE JUDGMENT OF JURISDICTIONAL HIGH COURT IS A MISTAKE APPARENT ON RECORD. HE HAS ALSO REFERRED TO THE DECISION OF HON. SUPREME COURT IN H ONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 466 (SC) WHERE IN IT IS HELD THAT FAILURE TO CONSIDER A DECISION OF CO-ORDINATE BENCH CITED BY THE ASSESSEE IS A MISTAKE. 7. WE HAVE CONSIDERED THESE JUDGMENTS. THEY HAVE BE EN EXPLAINED BY HON. DELHI HIGH COURT IN THE CASE OF LACHMAN DASS B HATIA HINGWALA (P) LTD. VS. ACIT (2011) 330 ITR 243 (DELHI) (FB). IT I S HELD THEREIN THAT THE TRIBUNAL WHILE EXERCISING THE POWER OF RECTIFICATIO N UNDER SECTION 254(2) OF THE ACT CAN RECALL ITS ORDER IN ENTIRETY IF IT I S SATISFIED THAT A PREJUDICE IS M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 8 CAUSED TO A PARTY WHICH IS ATTRIBUTABLE TO THE TRIB UNALS MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS MANIFEST ERROR AND IT H AS NOTHING TO DO WITH THE DOCTRINE OR CONCEPT OF INHERENT POWER OF REVIEW . NOT WITHSTANDING, WHEN WE CONSIDER TO APPLY THE DECISION OF HON. GUJA RAT HIGH COURT IN THE CASE OF HYNOUP FOOD & OIL INDUSTRIES LTD. (SUPRA) O N THE FACTS OF THE PRESENT CASE WE FIND THAT FACTS IN THAT CASE WERE D IFFERENT AND A DIFFERENT ISSUE WAS INVOLVED THEREIN. IN THAT CASE CLAIM OF D EDUCTION UNDER SECTION 80-I WAS ALLOWED TO THE ASSESSEE BUT THE AO IN ASSE SSMENT ORDER OF 1992- 93 TOOK A DIFFERENT VIEW ON THE BASIS OF CERTAIN EN QUIRY MADE IN ASST. YEAR 1994-95 THAT ASSESSEE IS NOT ENTITLED TO DEDUC TION UNDER SECTION 80 HH & 80-I. THIS WAS HELD TO BE A CHANGE OF OPINION AND ACCORDINGLY IT WAS HELD THAT REOPENING WAS NOT VALID. HOWEVER, THE TRIBUNAL HAS NOTED IN THE PRESENT CASE, AFTER REPRODUCING THE REASONS RECORDED THAT THERE IS NO CHANGE OF OPINION. THIS FINDING CANNOT BE ALTERED E VEN IF WE INTEND TO APPLY THE RATIO OF THE DECISION OF HON. GUJARAT HIG H COURT IN THE CASE OF HYNOUP FOOD & OIL INDUSTRIES LTD. (SUPRA) NOW. THER EFORE, NO PREJUDICE WILL BE CAUSED TO THE ASSESSEE BY NOT REFERRING TO THE DECISION WHICH WAS IN REALITY NOT DISCUSSED AND ARGUED BEFORE US DURIN G THE ORAL HEARING. IN VIEW OF THIS WE DO NOT FIND ANY MERIT IN THIS ARGUM ENT. REGARDING THE DECISION OF HON. SUPREME COURT IN CIT VS. KELVINATO R OF INDIA LTD. (2010) 320 ITR 561 (SC), WE NOTICE THAT IT HAS BEEN PROPERLY DISCUSSED AND IT IS HELD BY THE TRIBUNAL THAT IT IS NOT APPLI CABLE ON THE FACTS OF THE PRESENT CASE. DISCUSSION TO WHAT EXTENT SHOULD HAVE BEEN MADE IN THE ORDER OF THE TRIBUNAL CANNOT BE A SUBJECT MATTER OF RECTIFICATION. AS A RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REJECTED. M.A. NO.113/AHD/2010 ARISING OUT OF ITA NO.1773/AHD/2003 ASST. YEAR 1992-93 9 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS REJECTED. ORDER WAS PRONOUNCED IN OPEN COURT ON 21/4/11. SD/- SD/- (T. K. SHARMA) (D.C. AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMB ER AHMEDABAD, DATED : 21/4/11. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD 1.DATE OF DICTATION 8/4/2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 11/4/2011 MEMBER.OTHER MEMBER . 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..