The DCIT, Jalandhar V. M/s. Sarup Tanneries Ltd., Jalandhar

MA 12/ASR/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9263 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 06-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RAVISH SOOD
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.12(ASR)/2011 (OUT OF M.A. NO.46(ASR)/2009) (ARISING OUT OF I.T.A. NO.476(ASR)/2008 ASSESSMENT YEAR:2005-06 PAN : DY. COMMR. OF INCOME TAX, VS. M/S. SAROOP TANNERIE S LTD; RANGE-III, JALANDHAR. JALANDHAR. (APPLICANT) (RESPONDENT) APPLICANT BY:SH. TARSEM LAL, DR RESPONDENT BY:SH. RAVISH SOOD, ADVOCATE DATE OF HEARING:09/11/2012 DATE OF PRONOUNCEMENT:19/11/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION FOR TAKING FOLLOWING GROUNDS: APPLICATION U/S 254(2) OF THE INCOME TAX ACT, 196 1 IT IS SUBMITTED THAT THE HONBLE BENCH VIDE ITS ORD ER IN THE AFORESAID MA DATED 320.06.2010 HAS RECALLED ITS ORD ER IN ITA NO.476(ASR)/2008. IT HAS RECALLED THE ORDER WITH A VIEW TO EXAMINING THE APPLICABILITY OF THE LATEST JUDGMENT OF THE HON BLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. REPORTE D AT 226 ITR 188. IT DECIDED T CONSIDER THE SAID JUDGMENT OF THE HON BLE SUPREME COURT MA NO.12(ASR)/2011 2 IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCH ANGE LTD. REORTED AT 305 ITR 227. THE PRECISE HOLDING OF THE HONBLE AS CONTAINED IN PARA 7.4. IS AS UNDER: THUS, RESPECTFULLY FOLLOWING THE CORE RATIO DECIDE LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. S AURASHTRA KUTCH SOCK EXCHANGE LTD. (2009 305 ITR 227 (SC), WE HOLD THAT NON-CONSIDERATION OF THE DECISION OF THE HONB LE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. ( SUPRA) WHICH DEALS WITH THE ISSUE OF LOSS SUSTAINED, CONSE QUENT UPON STANDING GUARANTEE TO A SUBSIDIARY COMPANY CONSTIT UTES MISTAKE APPARENT FROM RECORD. CONSEQUENTLY, THE SPE CIFIC ISSUE OF CLAIM OF IMPUGNED LOSS RAISED IN THE IMPUGNED MI SC. APPLICATION IS RECTIFIABLE MISTAKE APPARENT FROM RE CORD, AS CONTEMPLATED, U/S 254(2) OF THE ACT, HAVING REGARD TO THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA). THUS, TO THIS EXTENT ALONE, THE IMPUGNED APPELLATE ORDER OF THE B ENCH IS RECTIFIED. IT IS MADE CLEAR THAT THE APPLICABILITY OR OTHERWISE OF THE DECISION OF THE SUPREME COURT IN THE CASE OF CI T VS. AMALGAMATIONS PVT. LTD. (SUPRA) CANNOT BE ADJUSTMEN T UNDER THE PROVISIONS OF SECTION 25(2) OF THE ACT, AS THE SAME IS COVERED U/S 254(1) OF THE ACT. IT MAY BE MENTIONED THAT IN THE CAUSE OF ACIT VS. S AURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA), THE HONBLE SUPR EME COURT HAS APPROVES THE INVOCATION OF THE PROVISIONS OF SECTION 254(2) BECAUSE THE JUDGMENT OF THE JURISDICTIONAL H IGH COURT IN THE CASE OF HIRA LAL BHAGWATI VS. CIT REPORTED AT 2 46 ITR 188 DELIVERED A FEW MONTHS PRIOR HAS NOT BEEN CONSIDERE D IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. BY THE HONBLE TRIBUNAL WHICH HAD DOVETAILING SUITABILITY TO THE F ACTS OF THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. BUT HE RE IN THE CASE OF THE ASSESSEE THERE IS NO SUCH DIRECT APPLIC ATION OR DOVETAILING SUITABLY OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. ( SUPRA) TO THE FACTS OF THE ASSESSEES CASE. BEFORE RECALLING THE ORDER UNDER SECTION 254(2), THE HONBLE TRIBUNAL OUGHT TO HAVE EXPRESSED ITS PRIMA FACIE SATISFACTION THAT THE JUDGMENT OF T HE HONBLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT . LTD. (SUPRA) IS APPLICABLE TO THE FACTS OF THE ASSESSEE S CASE. THE MA NO.12(ASR)/2011 3 CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) DEALS WITH THE ISSUE OF LOSS SUSTAINED, CONSEQUENT UPON STANDING G UARANTEE TO A SUBSIDIARY COMPANY WHICH IS NOT THE CASE OF THE ASS ESSEE. THEREFORE, RECALLING THE ORDER WITH A VIEW TO EXAM INING THE APPLICABILITY OF THE JUDGMENT OF THE HONBLE SUPREM E COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) IS NOT IN CONSONANCE WITH THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. IT MAY BE MENTIONED HERE THAT THE HONBLE BENCH HAD RECALLED THE ORDER PERHAPS UNDER THE MISTAKE NOTION THAT THE JUDGMENT OF THE HONBLE SUPREME IS THE LATEST WHICH IS NOT SO AS T HE JUDGMENT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. WAS DELIVERED BY THE HONBLE SUPREME COURT ON 25 TH APRIL, 1997 WHEREAS THE TRIBUNALS ORDER IN THIS CASE IN ITA NO.476(ASR)/2008 IS DATED 23 RD JANUARY, 2009 I.E. 12 YEARS PRIOR TO THE ORDER OF THE ITAT IN THE CASE. I N THE WRITTEN SYNOPSIS FILED BY THE ASSESSEES COUNSEL SH. RAVISH SOOD ON 06.06.2011, IT HAS BEEN CLAIMED BY HIM THAT A SUM O F RS.1,90,38,479/- WAS PAID BY THE ASSESSEE AS GUARANTOR TO THE FOREIG N BANK. THIS FACT IS NOT BORNE OUT FROM RECORD AND CLEARLY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT . LTD. (SUPRA) WAS NOT APPLICABLE AND RECALLING OF THE ORDER IN I TA NO.476(ASR)/2009 WAS NOT PERMISSIBLE U/S 254(2) OF INCOME TAX ACT, 1961. IN VIEW OF THE ABOVE SUBMISSION, IT IS PRAYED THAT THE ORDER IN M.A. MAY KINDLY BE SUITABLY RECTIFIED. SD/- (A.N. MISRA) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-III, JALANDHAR. 2. AT THE TIME OF HEARING, THE LD. DR STATED THAT T HIS BENCH HAS RECALLED ITS ORDER DATED 30.06.2010 WITH A VIEW TO EXAMINING THE APPLICABILITY OF THE LATEST JUDGMENT OF THE HONBLE SUPREME COURT IN TH E CASE OF M/S. AMALGAMATIONS PVT. LTD. REPORTED AT 226 ITR 188. BU T BEFORE RECALLING THE ORDER, THIS BENCH OUGHT TO HAVE EXPRESSED ITS PRIMA FACIE SATISFACTION THAT MA NO.12(ASR)/2011 4 THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CA SE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) IS APPLICABLE TO TH E FACTS OF THE PRESENT ASSESSEE, WHICH HAS NOT BEEN DONE BY THIS BENCH WHI LE PASSING THE ORDER IN MA NO.46(ASR)/2009 ARISING OUT OF ITA NO.476(ASR)/2 009, DATED 30.06.2010. THEREFORE, IT IS A MISTAKE APPARENT FRO M RECORD. SECONDLY, THE LD. DR ALSO ARGUED THAT THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) IS NOT APPLICABLE IN THE CASE OF THE ASSESSEE. THEREFORE, THIS BENCH HAS WRONGLY REC ALLED THE ORDER DATED 23.01.2009 PASSED IN THE PRESENT APPEAL AND WRONGLY RECALLED THE ORDER VIDE ITS ORDER DATED 30.06.2010 AND HE REQUESTED THAT TH E ORDER PASSED U/S 254(2) OF THE ACT DATED 30.06.2010 MAY BE RECALLED AND THE ORIGINAL ORDER DATED 23.01.2009 BE RESTORED. 3. THE LD. COUNSEL FOR THE ASSESSEE, SH. RAVISH SO OD, ADV. CONTROVERTED THE ARGUMENTS ADVANCED BY THE LD. DR A ND STATED THAT THIS M.A. FILED BY THE REVENUE IS NOT MAINTAINABLE IN VI EW OF THE DECISION OF THE DELHI SPECIAL BENCH E NEW DELHI, IN THE CASE OF S H. PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, ORDER DATED 0 7.01.2011 IN M.A. NO.57/DEL/2010 ( IN M.A. NO.402/DEL/2009, IN M.A. N O.05/DEL/2008 AND IN ITA NO.2964/DEL/2002) FOR THE ASSESSMENT YEAR 1995- 96. A COPY OF THIS DECISION HAS BEEN PLACED ON RECORD. HE FURTHER STAT ED THAT WITHOUT PREJUDICE TO THE AFORESAID ARGUMENT, THERE IS NO MISTAKE APPA RENT FROM RECORD BECAUSE MA NO.12(ASR)/2011 5 THIS BENCH IS SATISFIED THAT THE JUDGMENT OF THE HO NBLE SUPREME COURT IS APPLICABLE IN THE CASE OF THE ASSESSEE I.E. CIT VS. M/S. AMALGAMATIONS PVT. LTD. (1997) 226 ITR188. HE FURTHER STATED THAT THE LD. DR COULD NOT SUGGEST THIS BENCH IN WHICH WAY THIS BENCH SHOULD PASS THE ORDER IN M.A.46(ASR)/2009 DATED 30.06.2010, AS HE HAS SUGGES TED AT PAGE 3 BY WRITING THAT THE TRIBUNAL OUGHT TO HAVE EXPRESSED I TS PRIMA FACIE SATISFACTION HAT THE JUDGMENT OF THE HONBLE SUPREME COURT IN TH E CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) IS APPLICABLE TO T HE FACTS OF THE ASSESSEES CASE. FINALLY, HE ARGUED THAT THE PRESENT APPLICATI ON FILED BY THE REVENUE IS NOT MAINTAINABLE IN VIEW OF THE DECISION OF THE D ELHI SPECIAL BENCH E NEW DELHI, IN THE CASE OF SH. PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, ORDER DATED 07.01.2011 (SUPRA). THEREFORE, THE PRESENT M.A. FILED BY THE ASSESSEE MAY BE DISMISSED. 4. IN REBUTTAL MR. TARSEM LAL, THE LD. DR STATED TH AT HE HAS GONE THROUGH THE ORDER PASSED BY DELHI SPECIAL BENCH E NEW DELHI, IN THE CASE OF SH. PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX O FFICER, ORDER DATED 07.01.2011 (SUPRA) BUT THE SPECIAL BENCH HAS NOT D ISCUSSED THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE O F HODA SIEL POWER PRODUCTS LTD. VS. C.I.T REPORTED IN (2007) 295 ITR 466 (SC), IN WHICH THE HONBLE SUPREME COURT HAS STATED THAT NO PARTY APPE ARING BEFORE THE APPELLATE TRIBUNAL, BE IT AN ASSESSEE OR DEPARTMENT SHOULD SUFFER ON ACCOUNT MA NO.12(ASR)/2011 6 OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. IF PREJUD ICE HAD RESULTED TO THE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIB UNALS MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN T HE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. AS POINTED OUT BY THE LD. DR IN THE M.A., THE PRESENT M.A. FILED BY THE REVENUE IS MAINTAINAB LE. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE LD. DR HAS NOT THOROU GHLY GONE THROUGH THE JUDGMENT PASSED BY THE HONBLE SUPREME OF INDIA IN THE CASE HONDA SIEL POWER PRODUCTS LTD. VS. CIT (SUPRA). IN FACT, IT IS IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THE HONBLE SUPREME COURT HAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWER U/S 254(2) OF THE ACT WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL OR DER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED IT S MISTAKE, IT HAS ACCORDINGLY RECTIFIED ITS ORDER. FINALLY, THE ORD ER PASSED BY THE TRIBUNAL ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED BY THE HONBLE SUPREME COURT WHILE DECIDING THE APPEAL IN FAVOUR OF THE ASSESSEE. SECONDLY, HE STATED THAT IN THIS CASE, THE HONBLE SUPREME COURT HAS UPHELD THE ORDER OF THE TRIBUNAL PASSED U/S 254(2) OF THE ACT, IN WHICH THE TRIBUNAL HAS RECTIFIED THE ORDER PASSED U/S 254(1) OF THE AC T AND NOT U/S 254(2) OF THE ACT, AS THE REVENUE DESIRED TO RECTIFY THE ORDER PA SSED BY THIS BENCH U/S MA NO.12(ASR)/2011 7 254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE UNDER T HE LAW. HE REQUESTED THAT THE PRESENT MISC. APPLICATION FILED BY THE REVENUE MAY BE DISMISSED. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE CONTENTION RAISED BY THE REVENUE IN THE MISC. APPLICATION ALONG WITH THE REPLY FILED BY THE ASSESSEE WITH THE SUPPORT OF THE ORDER PASSED BY THE DELHI SPECIAL BENCH E NEW DELHI IN THE CASE OF SH PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFIC ER, WARD-2(1), MEERUT (SUPRA).FOR THE SAKE OF CONVENIENCE, THE REL EVANT PART OF THE ORDER OF THE SPECIAL BENCH AT PAGE 5 PARA 8, 10 & 11 IS REP RODUCED AS UNDER: 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT SUB-S ECTION (2) OF SECTION 254 CAN BE INVOKED ONLY IN A SITUATION IF THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SE CTION 254. THE IMPUGNED MISCELLANEOUS APPLICATION FILED BY THE ASS ESSEE IS AGAINST THE ORDER PASSED ON 27.11.2009 WHICH IS AN ORDER PA SSED U/S 254(2). THEREFORE, PRINCIPALLY, THE APPLICATION FILED BY TH E ASSESSEE HAS TO BE REJECTED ON THIS GROUND ALONE AND FOR THIS PURPOSE, RELIANCE CAN BE PLACED ON THE FOLLOWING DECISIONS: (I) CIT VS. PRESIDENT, INCOME TAX APPELLATE TRIBUNA L 196 ITR 848 (ORISSA) WHEREIN IT HAS BEEN HELD THAT TO A TTRACT APPLICABILITY OF SECTION 254(2), A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM RECORD AND TH E SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) O F SECTION 254. THE ORDER REFERRED TO IN SECTION 254(1 ) IS ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSES SEE OR BY THE REVENUE. TE APPEAL REFERRED TO IN THE PROVISI ON IS ONE FILED U/S 253. THEREFORE, THE ORDER WHICH CAN B E RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED U/S 253. AN ORDER REJEC TING AN APPLICATION FOR RECTIFICATION U/S 254(2) CANNOT BE RECTIFIED U/S 254(2). THE SAME MAY RELATE TO AN APP EAL BUT MA NO.12(ASR)/2011 8 IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-SE CTION (1) OF SECTION 254 AND THUS, IT WAS HELD THAT SUBSE QUENT APPLICATION FILED BY THE ASSESSEE WAS RIGHTLY REJEC TED BY THE TRIBUNAL. (II) IN THE CASE OF MENTHA & ALLIED PRODUCTS CO. LT D. VS. ITAT 244 ITR 470 (DEL), AFTER REFERRING TO THE PROVISIONS OF SECTION 254(1) AND (2), IT WAS HELD A S UNDER: 7. THE RELEVANT PROVISIONS OF SECTION 254 READ AS UNDER: 254. ORDERS OF APPELLATE TRIBUNAL (1) THE TRIBU NAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. (2) THE TRIBUNAL MAY, AT ANY TIME, WITHIN FOUR YEA RS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-S.(1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE AO.. THE AFORENOTED PROVISIONS OF LAW ARE CLEAR AND UNAMBIGUOUS. A BARE READING WHEREOF LEAVES NO DOUBT IN OUR MIND THAT THE TRIBUNAL IS COMPETENT TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDE R WHICH HAS BEEN PASSED UNDER SUB SECTION(1). ADMITTE DLY, BY THE IMPUGNED ORDER, THE TRIBUNAL HAS SOUGHT TO R ECTIFY THE ORDER PASSED BY IT U/S 256(1) OF THE ACT AND NO T AN ORDER PASSED U/S 254(1). WE HAVE NO HESITATION IN H OLDING THAT THE TRIBUNAL IS NOT CLOTHED WITH AN INHERENT P OWER TO RECTIFY/RECALL AN ORDER PASSED U/S 256(1) OF THE AC T BY TAKING RECOURSE TO SECTION 254(2) OF THE ACT AND THEREFORE, THE IMPUGNED ORDER IS ILLEGAL AND INVALI D. THE VIEW TAKEN BY US FINDS SUPPORT FROM A DECISION OF T HIS COURT IN CIT VS. KABIR DAS INVESTMENT LTD. (1995) 124 CTR (DEL) 259: (1994) 210 ITR 898 (DEL): TC 55R.777 . MA NO.12(ASR)/2011 9 10. IN THE CASE OF CIT VS. AISWARYA TRADING CO. 1 96 TAXMAN 385 (KER.), IT WAS HELD THAT THE TRIBUNAL W AS JUSTIFIED IN REFUSING TO ENTERTAIN AN APPLICATION FILED BY T HE REVENUE U/S 254(2) TO RECTIFY THE ORDER ISSUED BY THE TRIBUNAL IN AN EARLIER RECTIFICATION APPLICATION FILED BY THE ASSESSEE, AS THE SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINA BLE BEFORE THE TRIBUNAL. 11. IN THE CASE OF DR. S. PANNEERSELVAM VS. ACI 3 19 ITR 135, IT WAS HELD THAT THE TRIBUNAL HAVING ALLOWED F IRST RECTIFICATION PETITION, SECOND PETITION WAS NOT MAI NTAINABLE; REMEDY BY WAY OF APPEAL WAS THE ONLY COURSE OPEN. 5.1. KEEPING IN VIEW THE ORDER DATED 07.01.2011 PAS SED BY THE DELHI SPECIAL BENCH E NEW DELHI IN THE CASE OF SH PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, WARD-2(1), MEERUT (S UPRA), WE HOLD THAT THE PRESENT MISC. APPLICATION FILED BY THE REVENUE FOR RECALLING THE ORDER PASSED BY THIS BENCH U/S 254(2) DATED 30.06.2010 BY RECALL ING THE ORDER DATED 23.01.2009 PASSED IN ITA NO.476(ASR)/2009, THE PRES ENT M.A. NO.12(ASR)/2011 FILED BY THE REVENUE IS NOT MAINTA INABLE BECAUSE THIS APPLICATION HAS BEEN FILED BY THE REVENUE FOR RECAL LING THE ORDER PASSED U/S 254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE IN VIEW OF THE DECISION OF THE DELHI SPECIAL BENCH E NEW DELHI IN THE CASE OF SH PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, WARD-2(1), MEERUT (S UPRA). SECONDLY, THE ARGUMENTS ADVANCED BY THE LD. DR IS ON THE BASIS OF AVERMENT MADE BY SH. A.N. MISRA , DCIT, R-III, JALANDHAR, IS NOT APPRECI ABLE BECAUSE DCIT, CIRCLE-III, JALANDHAR IS A SUBORDINATE AUTHORITY AN D HAVE NO POWER TO GUIDE MA NO.12(ASR)/2011 10 THIS BENCH, IN WHICH WAY THIS BENCH SHOULD HAVE PAS SED THE ORDER AS HE HAS STATED AT PAGE 3 (IN THE BOTTOM FIVE LINES).HE FURT HER STATED THAT BEFORE RECALLING THE ORDER U/S 254(2), THE HONBLE TRIBUNA L OUGHT TO HAVE EXPRESSED ITS PRIMA FACIE SATISFACTION THAT THE CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA) IS APPLICABLE TO THE FACTS OF THE ASSESSEE S CASE. WE MAY MENTION HERE THAT IF THIS BENCH HAS EXPRESSED ITS VIEW WHIL E RECALLING THE ORDER THEN IT AMOUNTS TO GIVING THE BENCH OPINION, WHICH WILL PRE JUDICE TO THE RIGHTS OF THE PARTY. NOW IT IS OPEN TO THE BENCH AS WELL AS T O THE PARTY ALSO TO ADVANCE/HEAR THE ARGUMENTS OF BOTH THE PARTIES AND DECIDE THE APPLICABILITY OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF M/S. AMALGAMATIONS PVT. LTD. (SUPRA), WHETHER IT APPLICA BLE IN THE CASE OF THE ASSESSEE OR NOT AND TO DECIDE THE ISSUE ACCORDINGL Y. WE SUGGEST TO THE APPLICANT NOT TO SUGGEST THE HIGHER AUTHORITIES AS HE HAS SUGGESTD IN THE PRESENT MISC. APPLICATION AS DISCUSSED ABOVE. AS RE GARDS THE JUDGMENT CITED BY THE LD. DR IN THE CASE OF HONDA SIEL POWER PRODU CTS LTD. VS. CIT 295 ITR 466 (SC), WHICH IS IN FAVOUR OF THE ASSESSEE AN D AGAINST THE REVENUE, ACCORDING TO THE FACTS AND CIRCUMSTANCES OF THE PR ESENT CASE AND AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE. THEREFORE, THE ARGUMENTS ADVANCED BY THE LD. DR ARE BASELESS AND DESERVES TO BE REJEC TED. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE AND AS WELL AS THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F HONDA SIEL POWER MA NO.12(ASR)/2011 11 PRODUCTS LTD. VS. CIT (SUPRA) AND DELHI SPECIAL BEN CH IN THE CASE OF SH. PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, MEERUT (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE ARGUMENTS A DVANCED BY THE LD. COUNSEL FOR THE ASSESSEE HAVE FULL FORCE AND DESER VE TO BE ACCEPTED. THEREFORE, WE DISMISS THE PRESENT MISCELLANEOUS APP LICATION FILED BY THE REVENUE BY RESPECTFULLY FOLLOWING THE DECISION OF THE DELHI SPECIAL BENCH IN THE CASE OF SH. PADAM PRAKASH (HUF), MEERUT VS. INCOME TAX OFFICER, MEERUT (SUPRA). 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19TH NOVEMBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 19TH NOVEMBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. SARUP TANNERIES LTD. JALANDHAR 2. THE DCIT, R-III, JALANDHAR., 3. THE CIT(A), JALANDHAR. 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.