The Income tax Officer, Jammu V. M/s. Sun Pharmaceuticals Industries, Jammu

MA 16/ASR/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7954 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 07-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUBHASH JALAN
• Keywords: Question of law; Capital receipt
• Section: 80IB; 10B; 154

Judgement Text

MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 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.16(ASR)/2011 (ARISING OUT OF I.T.A. NO.184(ASR)/2009) ASSESSMENT YEAR:2005-06 INCOME TAX OFFICER, VS. M/S. SUN PHARMACEUTICAL IN DUSTRIES, WARD 1(3), JAMMU. JAMMU. (APPELLANT) (RESPONDENT) M.A. NO.08(ASR)/2011) (ARISING OUT OF I.T.A. NO.184(ASR)/2009) ASSESSMENT YEAR:2005-06 M/S. SUN PHARMACEUTICAL INDUSTRIES, VS. INCOME TAX OFFICER, JAMMU. WARD 1(3), JAMMU. (APPELLANT) (RESPONDENT) ASSESSEE BY:SH. SUBHASH JALAN, CA DEPARTMENT BY:SH.TARSEM LAL, DR DATE OF HEARING :21/05/2012 DATE OF PRONOUNCEMENT:23/05/2012 ORDER PER BENCH: THESE MISCELLANEOUS APPLICATIONS OF THE REVENUE AS WELL AS THE ASSESSEE ARISE FROM THE ORDER OF THE ITAT, AMRITSAR BENCH, IN ITA NO.184(ASR)/2009 FOR THE ASSESSMENT YEAR 2005-06, D ATED 11 TH JUNE, 2010. MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 2 2. FIRST OF ALL, WE TAKE UP M.A.NO.16(ASR)/2011 FIL ED BY THE REVENUE. THE LD. DR, SH. TARSEM LAL, AT THE OUTSET SUMMARIZ ED THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND POINTED OUT TH E MISTAKES IN THE SAID ORDER OF THE TRIBUNAL DATED 11.06.2010 AS UNDER: 2.1. FIRSTLY, POINTING OUT AT PAGE 62 OF ITATS ORD ER AT PARA 27, THE ITAT HAS REFERRED IN ITS ORDER AS UNDER: THE VARIOUS JUDGMENTS OF THE HONBLE HIGH COURT AN D THE BENCHES OF THE TRIBUNAL HAVE ALREADY BEEN REFERRED TO ABOVE . RESPECTFULLY, FOLLOWING SAID JUDGMENTS, WE HOLD THAT THE APPELLAN T WOULD BE ENTITLED TO BENEFIT U/S 80IB FOR THE SAME PERIOD TO WHICH SP IL WOULD HAVE BEEN ENTITLED TO HAD THERE BEEN ANY TRANSFER OF UND ERTAKING FROM SPIL TO THE APPELLANT. 2.2. IT WAS ARGUED THAT THERE IS NO SUCH JUDGMENTS REFERRED TO BY ITAT IN ITS ORDER WHERE PREDECESSOR HAD BEEN ALLOWED THE DE DUCTION U/S 80-IB THEN THE SUCCESSOR WILL BE SO ALLOWED THE SAID DEDUCTION . THIS IS A GRAVE ERROR BY THE ITAT IN ITS ORDER AT PARA 27 WHICH CONSTITUTES A MISTAKE APPARENT FROM RECORD UNDER SECTION 254(2) OF THE ACT AND ACCORDIN GLY PRAYED THE BENCH TO RECALL THE ORDER. 2.3. SECONDLY, THE LD. DR, SH. TARSEM LAL POINTED O UT AT PAGE 37 OF ITATS ORDER IN PARA 10.1 OF THE SAID ORDER, WHICH FOR THE SAKE OF CLARIFY IS REPRODUCED AS UNDER: MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 3 10.1 THE LEARNED DR HAS FURTHER SUBMITTED THAT THE ALTERNATE CLAIM OF THE APPELLANT THAT THE DEDUCTION IS TO AN UNDERTAKING AND THE BENEFIT SHOULD BE ALLOWED FOR THE BALANCE OF THE PE RIOD, RELIANCE ON THE BOARDS CIRCULAR IS MISPLACED AND THE APPELLANT IS NOT ELIGIBLE AT THE THRESHOLD STAGE ITSELF AND THE PREDECESSOR UNIT HAVING NOT CLAIMED AND ALLOWED THE DEDUCTION, THE SUCCESSOR UNIT CANN OT BE ENTITLED TO THE SAID DEDUCTION. THE LEARNED DR HAS RELIED ON TH E DECISION IN THE CASE OF AGS TIMBER & CHEMICAL IND. (PVT.) LTD., 92 TAXMAN 268 (MAD.) IN THIS REGARD, THE LD. DR, SH. TARSEM LAL ARGUED A ND POINTED OUT THE MISTAKES WHICH HAS THREE PARTS NAMELY, DECISION REF ERRED TO BY THE LD. DR IN THE SAID PARA 10.1 OF ITATS ORDER IN THE CASE OF AGS TIBER AND CHEMICALS IND (PVT.) LTD.(1997) 92 TAXMAN 268 (MAD.) HAS NOT BEEN DEALT WITH BY THE TRIBUNAL IN ITS ORDER DATED 11.06.2010. AS REGARDS THE ARGUMENTS BY LD. DR IN SAID PARA 10.1 OF THE ITATS ORDER WITH REFEREN CE TO THE BOARDS CIRCULAR, IT WAS ARGUED THAT THE APPELLANT IS NOT ELIGIBLE AT THE THRESHOLD STAGE ITSELF AS PER CIRCULAR AND THIRDLY WHEN PREDE CESSOR I.E. SUN PHARMACEUTICALS INDUSTRIES ( IN SHORT SPI) HAS NO T CLAIMED AND HAS NOT BEEN ALLOWED DEDUCTION UNDER SECTION 80IB, THE SUCCESSOR CANNOT BE ALLOWED SUCH DEDUCTION BECAUSE THE PREDECESSOR SPI HAS TO S ATISFY CERTAIN CONDITIONS U/S 80-IB OF THE ACT. THEREFORE, HAVING NOT DEALT WITH SUCH ISSUE, THERE IS A MISTAKE APPARENT FROM RECORD WHICH CLEARLY FALLS WI THIN THE AMBIT OF SECTION 254(2) OF THE ACT. MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 4 2.4. THIRDLY, THE LD. DR, SH. TARSEM LAL POINTED OU T AGAIN AT PAGE 62 OF ITATS ORDER IN THE 2 ND & 3 RD LINE WHICH FOR THE SAKE OF CLARITY ARE REPRODUCED AS UNDER: ACCORDING TO US, IF THE APPELLANT IS SUCCESSOR TO S PIL, IT MUST HAVE THE SAME CONSEQUENCE AS SPIL WOULD HAVE HAD. AND ALSO IN PARA 27 WHICH IS REPRODUCED FOR THE SAK E OF CLARITY AS UNDER: 27. ON PROPOSITION OF LAW, WE AGREE WITH THE LEARN ED DR THAT THE APPELLANT CANNOT ENJOY BENEFIT GREATER THAN SPI L. HOWEVER, IN OUR VIE, SPIL WOULD HAVE BEEN ENTITLED TO THIS BENEFIT MORE SO WHEN IN HIS REMAND REPORT FOR THE ASSESSMENT YEAR 2004-05, THE A.O. HIMSELF HAS ACCEPTED THIS FACT. IF THAT BE SO, THERE IS NO REAS ON NOT TO GO BY THE CIRCULAR ISSUED BY THE CBDT, WHICH IS FOUND TO BE V ALID EVEN IN RELATION TO SECTION 80IB.THE VARIOUS JUDGMENTS OF T HE HONBLE HIGH COURT AND THE BENCHES OF THE TRIBUNAL HAVE ALREADY BEEN REFERRED TO ABOVE. RESPECTFULLY, FOLLOWING SAID JUDGMENTS, WE H OLD THAT THE APPELLANT WOULD BE ENTITLED TO BENEFIT U/S 80IB FOR THE SAME PERIOD TO WHICH SPIL WOULD HAVE BEEN ENTITLED TO HAD THERE BE EN ANY TRANSFER OF UNDERTAKING FROM SPIL TO THE APPELLANT. IN THIS REGARD, THE LD. DR, SH. TARSEM LAL, ARGUED THAT THE ITAT CANNOT DECIDE ANY ISSUE ON SPECULATION, GUESS, CONJECTURES AND SUMRMISES. SUCH DECISION IS A MISTAKE APPARENT FROM RECORD, WHICH F ALLS UNDER SECTION 254(2) OF THE ACT. 2.5. FOURTHLY AND LASTLY, THE LD. DR, SH. TARSEM L AL INVITED OUR ATTENTION TO PAGE OF ITATS ORDER BEING GROUND NO.2(A) WHICH FOR THE SAKE OF CLARITY IS REPRODUCED AS UNDER: MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 5 2(A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE CIT(A) [HEREINAFTER REFERRED TO AS LEARNED CIT(A)] ERRED IN CONCURRING WITH THE FINDINGS OF THE AO THAT THE IND USTRIAL UNDERTAKING OF THE APPELLANT FIRM AT DADRA WAS FORMED BY TRANSF ER OF MACHINERY OR PLANT USED BY M/S. SUN PHARMACEUTICAL INDUSTRIES LI MITED FOR ANY PURPOSE. IN THIS REGARD, MR. TARSEM LAL, THE LD. DR ARGUED T HAT THE ITAT IN ITS ORDER FROM PAGE 1 TO 79 HAS NOT DECIDED THIS GROUND. NON -CONSIDERATION AND NOT DECIDING THE GROUND OF THE REVENUE IS A MISTAKE APP ARENT FROM RECORD UNDER SECTION 254(2) OF THE ACT. FINALLY, THE LD. DR PRAY ED THE BENCH TO RECALL THE ORDER ON ALL THE FOUR POINTS WHICH CONSTITUTE A MIS TAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT. 3. ON THE OTHER HAND, THE LD. AR, SH. SUBHASH JALAN , CA, ARGUED AT THE OUTSET THAT THE ITATS ORDER DATED 11.06.2011 IN IT A NO.184(ASR)/2009 FOR THE ASSESSMENT YEAR 2005-06 HAS BEEN CHALLENGED BY THE ASSESSEE AS WELL AS BY THE REVENUE BEFORE THE HONBLE HIGH COURT OF JAM MU & KASHMIR. THE SAID APPEAL OF THE ASSESSEE IS AVAILABLE AT ASSESSE ES PAPER BOOK AT PB 15 TO 30 AND THAT OF THE REVENUE APPEAL IS AVAILABLE AT P B 31 TO 65. THE HONBLE HIGH COURT OF JAMMU & KASHMIR HAS ADMITTED THE SUB STANTIAL QUESTION OF LAW OF THE ASSESSEE AND THAT OF THE REVENUE AVAILAB LE AT PB 67 TO 70. THE LD. AR APPEARING FOR THE ASSESSEE READ THE SUBSTANTIAL QUESTION OF LAW WHICH HAS BEEN ADMITTED AND AVAILABLE AT PB 66 TO 70. THEREFO RE, THE ISSUE IS ALREADY SEIZED WITH THE HONBLE HIGH COURT OF JAMMU & KASHM IR AND IS SUB-JUDICE MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 6 AND IS A DEBATABLE ISSUE. THEREFORE, NONE OF THE M ISTAKE POINTED OUT BY THE REVENUE IS A MISTAKE WHICH COULD FALL WITHIN THE PU RVIEW OF SECTION 254(2) OF THE ACT. THE LD. AR APPEARING FOR THE ASSESSEE, THEREFORE, PRAYED THE BENCH TO DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE ON THE SAID FACTS AND ADMISSION OF SUBSTANTIAL QUESTION OF LAW BY THE HONBLE HIGH COURT OF JAMMU & KASHMIR, AS MENTIONED HEREINABOVE. 3.1. THE LD. AR, MR. SUBHASH JALAN, CA ARGUED THAT ITATS ORDER IS RUNNING INTO 78 PAGES AND UP TO PAGE 54 COMPLETE HI STORY OF SETTING UP OF INDUSTRIAL UNDERTAKING HAS EXHAUSTIVELY BEEN DEALT BY THE ITAT BOTH FACTUALLY AND LEGALLY WHICH INCLUDES DISPOSAL OF GR OUND 2(A) RAISED BEFORE THE ITAT IN ITS ORDER DATED 11.06.2010. THEREAFTER, THE ITAT AT PAGE 54 ITSELF PROCEEDED TO DECIDE THE ISSUE WITH REGARD TO GROUND 2(B) FROM PARA 18 AND THEN GROUND 2(C) AND SO ON. IN PARA 5.4 OF ITAT S ORDER FROM PAGE 11 TO 20 OF ITATS ORDER THE CHRONOLOGY OF THE DATES AND EVENTS HAVE BEEN REPRODUCED. AT PAGE 16 OF ITATS ORDER IN PARA XXXI II, IT IS CLEARLY MENTIONED THAT THE ASSESSEE PARTNERSHIP FIRM WAS F ORMED W.E.F. 1.3.2003. THEREFORE, IT WAS ARGUED THAT FROM PAGE 5 TO 54 OF THE ITATS ORDER IS THE DISPOSAL OF GROUND 2(A). IT WAS FURTHER ARGUED THAT IT IS A MATTER OF RECORD THAT IN ORDER OF THE ITAT THAT THE CAPITAL WORK IN PROGR ESS OF SPIL WITHOUT STARTING OF THE COMMERCIAL PRODUCTION WAS TRANSFERRED TO ASSESSEES FIRM AND THIS MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 7 FACT IS AVAILABLE AT ITATS ORDER AT PAGE 20 & 21 WHEN THERE IS NO QUESTION OF COMMERCIAL PRODUCTION BY SPIL, THEN THERE CANNOT BE ANY CLAIM OR DEDUCTION U/S 80IB BY THE SPIL THE SELLER COMPANY. IT IS ALSO A MATTER OF RECORD THAT AT PAGE 21 OF THE ITATS ORDER THAT FIR ST BATCH OF MANUFACTURING WAS PRODUCED ON 14.4.2003 BY THE ASSESSEE AND THIS FACT WAS SUBMITTED BEFORE THE A.O. IT WAS ARGUED BY THE LD. AR BY POI NTED OUT AT PAGE 44 OF ITATS ORDER IN PARA 11.1 BY SPECIFICALLY REFERRING TO THE REMAND REPORT OF THE A.O. WHICH WAS SUBMITTED TO THE LD. CIT(A) DURI NG THE COURSE OF HEARING FOR THE ASSESSMENT YEAR 2004-05. THE AO HAS ACCEPTE D IN THE FIRST LINE OF PAGE 17 OF THE REMAND REPORT THAT THE DADRA PLANT H AD STARTED COMMERCIAL PRODUCTION IN APRIL, 2003 IS NOT DISPUTED. THE A.O. HAS ACCEPTED THE ELIGIBILITY OF SPI TO THE CLAIM U/S 80IB ON PAGE 15 AND 19. IN THESE PAGES, THE AO HAS STATED THAT THE INDUSTRIAL UNDERTAKING SET U P BY SPIL WAS QUALIFIED BUT IT WANTED TO AVOID PAYMENT OF TAX UNDER MAT. ON PAGE 15 OF THE SAID REMAND REPORT, THE AO HAS OBSERVED IN PARA 2 TO PO INT (XIII) THAT THE QUESTION ARISES AS TO WHY A RUNNING UNIT ESTABLISHE D IN THE FINANCIAL YEAR 2001-02 BY SPIL WAS TRANSFERRED TO SPI ON 1.4.2003, WHEN DEDUCTION U/S 80IB WOULD HAVE BEEN AVAILABLE TO SPIL ALSO. REFER RING TO PAGE 78 OF ITATS ORDER IN PARA 43.3 THAT THE ITAT IN THIS P ARA IS OF THE OPINION THAT THE UNDERTAKING FORMED BY SPI AT DADRA WAS QUALIFIE D FOR DEDUCTION U/S MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 8 80IB AND THE FIRST YEAR WAS TAKEN AS ASSESSMENT YE AR 2002-03 AND THE ASSESSMENT YEAR UNDER CONSIDERATION HAD BECOME THE FOURTH YEAR OF THE UNDERTAKING AND ACCORDINGLY THE BENEFIT OF DEDUCTIO N U/S 80-IB NEEDS TO BE ALLOWED AS PER THE PROVISIONS OF THE SECTION AND CI RCULAR OF CBDT, REFERRED TO HEREINABOVE. THOUGH THE ASSESSEE IS IN APPEAL BE FORE THE HONBLE HIGH COURT OF JAMMU & KASHMIR FOR THIS FINDING, THEREFO RE, THE ITAT HAS VERY WELL DISCUSSED GROUND 2(A) RAISED BEFORE IT IN ITS ORDER DATED 11.06.2010, WHICH HAS BEEN DECIDED BY THE TRIBUNAL AND DOES NOT CONSTITUTE ANY MISTAKE WHICH CAN FALL WITHIN THE AMBIT OF SECTION 254(2) O F THE ACT. HE FURTHER ARGUED THAT LD. DR, SH. TARSEM LALS ARGUMENTS WITH REGARD TO NON- ADJUDICATION OF GROUND 2(A) IS WITHOUT ANY BASIS AN D CONSIDERING HIS ARGUMENTS WILL TANTAMOUNT TO REVIEW OF ITATS OWN O RDER, WHICH IS NOT WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. 3.2. AS REGARDS BOARDS CIRCULAR AND OTHER MISTAKES POINTED OUT BY THE LD. DR WITH RESPECT OF THE ITATS ORDER AT PAGE 37 PARA 10.1, IT WAS ARGUED BY THE LD. AR APPEARING FOR THE ASSESSEE APART FROM O THER DECISIONS REFERRED TO IN ITATS ORDER, AT PAGE 6 OF ASSESSEES PAPER BOOK ARE THE JUDGMENTS AND DECISIONS, WHICH WERE SUBMITTED BEFORE THE ITAT DUR ING THE COURSE OF HEARING. FOLLOWING DECISIONS WERE REFERRED TO BY TH E LD. AR FOR ITS CONSIDERATION: MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 9 I) TECH BOOKS ELECTRONIC SERVICES (P) LTD VS. ADDL. CIT, RANGE 16, 100 ITD 125 (DEL). II) CHETAK ENTERPRISES (P) LTD. VS. ACIT, CIR.1, 95 ITD 1(JODH) III) C.I.T. VS. HAJI MODH. ALIO MODH ISHAQ VS. 295 ITR 1 09 (ALL) IV) MADRAS MACHINE TOOLS MANUFACTURERS LTD. VS. CIT 98 ITR 119 (MAD) 3.3 IN THE SAID DECISIONS OF THE TRIBUNAL IN THE C ASE OF TECH BOOKS ELECTRONIC SERVICES (P) LTD VS. ADDL. CIT, RANGE 16 , 100 ITD 125 (DEL) (SUPRA), WHICH DEALT WITH EXEMPTION U/S 10B IS ACC ORDING TO THE CIRCULAR. SIMILARLY, IN THE CASE OF CHETAK ENTERPRISES (P) LT D. VS. ACIT, CIR.1, 95 ITD 1 (SUPRA) WHICH IS ON SECTION 80IA HAS DEALT WITH THE CIRCULAR. THE CASE OF C.I.T. VS. HAJI MODH. ALIO MODH ISHAQ VS. 295 ITR 1 09 (ALL)(SUPRA) IS WITH REGARD TO SECTION 80J AND THE CASE OF MADRAS MACHI NE TOOLS MANUFACTURERS LTD. VS. CIT 98 ITR 119 (MAD) IS WITH REGARD TO SEC TION 84 & 80J . ALL THE SAID DECISIONS OF THE TRIBUNAL IN VARIOUS HIGH COUR TS REFERRED TO HEREINABOVE ARE APPLICABLE BASED ON THE CIRCULAR ITSELF. THE IT AT HAS CONSIDERED ALL THE DECISIONS AND ACCORDINGLY DECIDED THE ISSUE , THOUG H NO SPECIFICALLY REFERRED IN ITS ORDER. IN THE SAID DECISIONS, PREDECESSOR HA D BEEN ALLOWED DEDUCTION UNDER VARIOUS DEDUCTIONS AND ACCORDINGLY SUCCESSOR WAS ALSO ALLOWED DEDUCTION. 3.4. AS REGARDS THE DECISION IN THE CASE OF AGS TIB ER & CHEMICALS IND. (P) LTD. (SUPRA), THE SAID DECISION THOUGH NO REFE RRED TO BY THE ITAT IN ITS ORDER IS WITH REGARD TO LESSER AND LESSEE RELATIONS HIP AND IT WAS NEVER THE MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 10 CASE OF THE DEPARTMENT THAT THE ASSESSEE IS A LESSE E AND SPI IS A LESSER AND THIS DECISION IS IRRELEVANT AND ARGUMENT MADE BY TH E LD. DR THAT THIS DECISION HAS NOT BEEN CONSIDERED IS IRRELEVANT AND CANNOT CONSTITUTE A MISTAKE U/S 254(2) OF THE ACT. AS REGARDS THE DEPAR TMENTAL MISCELLANEOUS APPLICATION, THE LD. DR HAS REFERRED TO THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD . VS. CIT (2007) 295 ITR 466 (SC), WHICH IS ALSO IRRELEVANT SINCE IN THA T DECISION OF HONBLE SUPREME COURT, THE RATIO LAID DOWN BY THE HONBLE S UPREME COURT IS THAT OF CO-ORDINATE BENCH DECISION WAS NOT CONSIDERED ON SI MILAR ISSUE AND HAD BECOME A MISTAKE APPARENT FROM RECORD. IN THE PRESE NT CASE, THERE IS NO SUCH ISSUE IN HAND BEFORE THE BENCH AND, THEREFORE, THIS ARGUMENT OF THE LD. DR IS WITHOUT ANY BASIS AND CANNOT HELP THE REVENUE TO CO NSIDER ITS APPLICATION. 3.5. AS REGARDS THE ARGUMENTS OF THE LD. DR WITH RE GARD TO ITATS DECISION AT PAGE 62 WHERE THE WORD WOULD HAVE BEEN USED AND THE DECISION OF THE ITAT BEING ON SPECULATION, GUESS, CONJECTUR ES AND SURMISES AS ARGUED BY THE LD. DR IS AS A MATTER OF FACT IS WIT HOUT ANY BASIS AND AT THE OUTSET CANNOT BE A MISTAKE APPARENT FROM RECORD. BU T THE LD. DR IS TRYING TO GET THE ORDER OF THE ITAT REVIEWED. 3.6. AS REGARDS THE ARGUMENTS AT PAGE 62 AS MENTIO NED HEREINABOVE AND PARA 27 AT THE SAID PAGE, THE ITAT HAD CONSIDERED THE ARGUMENTS AND THE MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 11 REMAND REPORT REFERRED TO IN PARA 11.1 AT PAGE 44 O F ITATS ORDER. IT IS WITH RESPECT TO THE REMAND REPORT BY THE AO WHERE HE HAS STATED THAT INDUSTRIAL UNDERTAKING I.E. SPI WAS QUALIFIED FOR THE ELIGIBIL ITY OF THE CLAIM U/S 80IB AND HAD IT BEEN CLAIMED IF THE COMMERCIAL PRODUCTIO N HAD STARTED IN SPI THAT IT WOULD HAVE BEEN ALLOWED AND ACCORDINGLY IT WOULD HAVE BEEN ALLOWED IN THE SUCCESSOR FIRM. THE ITAT HAD GIVEN ITS DECISION AFTER EXTENSIVELY DISCUSSING THE ISSUE AND ARGUMENT BY THE LD. DR THA T THE DECISION HAS BEEN MADE ON SPECULATION, GUESS, CONJECTURES AND SURMISE S IS NOTHING BUT AN ATTEMPT TO GET THE ORDER REVIEWED WHICH, IN FACT, D OES NOT FORM MISTAKE APPARENT FROM RECORD TO COME WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. THE LD. AR ARGUED THAT EVEN IF THE TRIBUNAL HA D CONSIDERED THE FACTS ON RECORD AND THE ARGUMENTS OF THE ASSESSEE IN SUBSTAN CE BUT HAS NOT CONSIDERED THE ARGUMENTS ADVANCED BY EITHER PARTIES FOR ARRIVI NG AT A CONCLUSION CANNOT BE AN ERROR APPARENT FROM RECORD, ALTHOUGH IT MAY B E AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN ITS EXERCISE OF POWER OF R ECTIFICATION, LOOK INTO THE CIRCUMSTANCES WHICH COULD SUPPORT OR NOT SUPPORT T HIS CONCLUSION. THESE VIEWS HAVE BEEN HELD BY THE HONBLE MUMBAI HIGH COU RT, IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING CO. (1993) 203 ITR 497 (BOM). HE ARGUED THAT LD. DR MR. TARSEM LAL UNDER THE GARB OF VARIOUS ARGUMENTS MADE BY HIM THAT THE SAME HAVE NOT BEEN CONSIDERED BY THE TRIBUNAL IS MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 12 TRYING TO GET THE ORDER OF THE ITAT REVIEWED WHICH IS NOT WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. ALL THE JUDGMENTS HAV E BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER RUNNING INTO 78 PAGES, HAVING CONSIDERED ALL THE ARGUMENTS OF THE REVENUE AND THAT OF THE ASSESSEE A ND HAVING DECIDED ALL THE ISSUES ON FACTS ON RECORD, THERE IS NO MISTAKE APPA RENT FROM RECORD AS POINTED OUT BY THE REVENUE. THEREFORE, THE LD. AR PRAYED THE BENCH TO DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACT OF THE CASE. AS REGARDS MISTAKE NO.1 POINTED OUT BY THE LD. DR IN REVENUES MISCELLANEOUS APPLICATION IS THAT AT PAGE 62 OF ITA TS ORDER, IN PARA 27 HAS REFERRED TO VARIOUS JUDGMENTS OF HONBLE HIGH C OURT AND THE BENCHES OF THE TRIBUNAL WHICH HAVE ALREADY BEEN REFERRED TO IN THE ORDER. FOLLOWING SUCH JUDGMENTS, THE APPELLANT WAS ENTITLED TO BENEF IT UNDER SECTION 80IB FOR THE SAME PERIOD TO WHICH SPIL WOULD HAVE BEEN ENTIT LED TO HAD THERE BEEN ANY TRANSFER OF UNDERTAKING FROM SPIL TO THE APPELL ANT. 4.1 IN THIS REGARD, IT WAS OBSERVED THAT THE FIRST SET OF JUDGMENT IS REFERRED TO AND RELIED UPON IS AVAILABLE AT PAGE 26 OF ITAT S ORDER AT PARA 5.13. THESE ARE SEVEN DECISIONS OF VARIOUS HIGH COURTS AN D THE TRIBUNAL. THE SAID DECISIONS ARE WITH RESPECT TO THE ALLOWABILITY OF D EDUCTION U/S 80IB VIS--VIS COMMERCIAL PRODUCTION AND NOT ON TRIAL PRODUCTION. THE SECOND SET OF MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 13 DECISIONS RELIED UPON BY THE AO/REVENUE IS AT PAGE 28 PARA 5.5 WHICH HAVE BEEN REFERRED TO AND HAS BEEN DISTINGUISHED BY THE FOLLOWING FIVE DECISIONS LISTED AT PAGE 30 OF ITATS ORDER UNDER PARA 6. THE REFORE, IN VIEW OF RELIANCE OF VARIOUS DECISIONS OF THE HONBLE HIGH C OURT AND THE BENCHES OF THE TRIBUNAL WHICH HAVE BEEN REFERRED TO AS MENTION ED HEREINABOVE, THE ITAT HAS RESPECTFULLY FOLLOWED THE SAID DECISIONS REFERRED TO AT I) PAGE 26 PARA 5.13. II) PAGE 28 PARA 5.15 AND III) PAGE 30 PARA 6 OF ITAT;S ORDER DATED 11.06.2010. THEREFORE, THE AR GUMENTS OF THE LD. DR, MR. TARSEM LAL ARE WITHOUT ANY BASIS THAT THERE AR E NO JUDGMENTS REFERRED TO IN ITATS ORDER BEFORE CONCLUSION AT PARA 27 PAGE 6 2 OF ITATS ORDER DATED 11.06.2010 AND WE FIND NO MISTAKE APPARENT FROM REC ORD U/S 254(2) OF THE ACT. THEREFORE, THE APPLICATION OF REVENUE WITH REF ERENCE TO FIRST MISTAKE POINTED OUT BY THE LD. DR APPEARING FOR THE REVENUE IS REJECTED. 5. AS REGARDS THE SECOND MISTAKE POINTED OUT BY THE LD. DR IS AT PAGE 37 PARA 10.1 OF ITATS ORDER DATED 11.06.2010. THE LD. DR POINTED OUT THREE LIMBS OF MISTAKE IN THE SAID SECOND MISTAKE. AS REG ARDS 2 ND & 3 RD LIMB MENTIONED HEREINABOVE, THE RELIANCE OF CBDT CIRCULA R DATED 13.12.1963 IS MISPLACED AS ARGUED BY THE LD. DR BECAUSE IN THIS CASE, THE PREDECESSOR SPIL HAS NOT CLAIMED ANY DEDUCTION U/S 80IB, THERE FORE, THE SUCCESSOR SPI, MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 14 THE ASSESSEE IS NOT ELIGIBLE FOR DEDUCTION AT THRES HOLD STAGE, AS THE CIRCULAR CONTEMPLATES WHERE PREDECESSOR HAS CLAIMED AND HAD BEEN ALLOWED DEDUCTION THEN ONLY SUCCESSOR WILL BE ENTITLED FOR THE UNEXPIRED PERIOD. IN THIS REGARD, WE OBSERVE THAT ITAT DURING THE COURSE OF ORIGINAL HEARING HAD DULY CONSIDERED FOUR DECISIONS AS STATED IN THE PA PER BOOK (CASE LAWS (2)) REFERRED TO AT PAGES J262 TO J-311. THESE FOUR DECI SIONS ARE IN THE CONTEXT OF ABOVE REFERRED TO CIRCULAR DATED 13.12.1963 AND THE HONBLE COURTS AND THE TRIBUNAL HAVE ALLOWED THE BENEFIT OF THE CIRCULAR T O THE SUCCESSOR/TRANSFEREE IN THE CONTEXT OF SECTION 10B, 80-IA, 80J AND SECTI ON 84/80-J OF THE ACT RESPECTIVELY. THOUGH THE ABOVE DECISIONS WERE CONSI DERED BY THE TRIBUNAL IN ADDITION TO VARIOUS DECISIONS IN THE LEGAL PAPER BO OK PAGES J-1 TO J-148, THOUGH THE DECISIONS ARE NOT MENTIONED IN THE ORDER OF THE ITAT BUT THE SAME HAVE BEEN DULY CONSIDERED AT PAGE 61 PARA 26 W HICH IS REPRODUCED FOR THE SAKE OF CLARITY: 26. NOW WE DEAL WITH GROUND NO.2(D). WE HAVE ALREA DY HELD IN THE FOREGOING PARAGRAPH THAT THE ASSESSEE IS NOT ENTITL ED FOR DEDUCTION UNDER SECTION 80IB OF THE ACT FOR THE ASSESSMENT Y EARS 2002-03 AND 2003-04, ONLY UNDERTAKING IS ENTITLED FOR THE SAME AND THE ASSESSEE IS ONLY ENTITLED FOR THIS DEDUCTION FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06. AS REGARDS TO ISSUE INVOLVED IN GROUND NO. 2(B), THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED UPON BOARDS CI RCULAR REFERRED TO ABOVE ( IN PARA 144 OF THE CIT(A)S ORDER) AS ALSO VARIOUS JUDGMENTS OF VARIOUS HIGH COURTS AND VARIOUS BENCHES OF THE TRIBUNAL FOR THE PROPOSITION THAT EVEN IF THE APPELLANT ASSESSEE ACQ UIRED RUNNING UNDERTAKING FROM SPIL, IT WOULD BE ENTITLED TO THE BENEFIT U/S 80IB FOR THE REMAINDER PERIOD BECAUSE BENEFIT UNDER SECTION 80IB IS ATTACHED MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 15 TO THE UNDERTAKING AND NOT TO THE OWNER AND THE MER E FACT THAT OWNERSHIP HAS UNDERGONE CHANGE WOULD NOT DEPRIVE NE W OWNER TO TAKE BENEFIT FOR THE REMAINDER PERIOD. THE ONLY ARG UMENT THAT THE LEARNED DR CANVASSED ON THIS ISSUE SO WAS THAT SPIL WOULD NOT HAVE GOT BENEFIT, QUESTION OF GIVING BENEFIT TO THE APPE LLANT ASSESSEE DID NOT ARISE. ACCORDING TO US, IF THE APPELLANT IS SUCCESS OR TO SPIL, IT MUST HAVE THE SAME CONSEQUENCE AS SPIL WOULD HAVE HAD. 5.1. AFTER CONSIDERING THE SAME, ITAT GAVE ITS ORD ER AT PAGE 62 PARA 27 AS HAVE ALREADY BEEN MENTIONED HEREINABOVE. THEREFORE, WE FIND NO MISTAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT WITH REG ARD TO 2 ND & 3 RD LIMB OF THE SECOND MISTAKE POINTED OUT BY THE LD. DR. THE APPLICATION OF THE REVENUE ACCORDINGLY FOR 2 ND & 3 RD LIMB OF SECOND MISTAKE IS REJECTED. 5.2. AS REGARDS FIRST LIMB OF SECOND MISTAKE THAT T HE DECISION IN THE CASE OF A.G.S. TIBER AND CHEMICALS INDUSTRIES (P) LTD. VS. CIT (1997) 92 TAXMAN 268 (MAD) (SUPRA) HAS NOT BEEN CONSIDERED BY THE IT AT. WE ARE OF THE VIEW THAT THE SAID DECISION IN THE CASE OF A.G.S. TIBER AND CHEMICALS INDUSTRIES (P) LTD. VS. CIT (SUPRA) IS WITH RESPECT TO LESSOR AND LESSEE RELATIONSHIP FOR DEDUCTION U/S 80-J OF THE ACT. IT IS IN THIS CONTEX T THAT THE HONBLE MADRAS HIGH COURT HELD THAT LESSEE WOULD NOT BE ENTITLED T O RELIEF U/S 80J BUT THE BENEFIT OF THE CIRCULAR APPLIES TO THE SUCCESSOR. W E FIND THAT THE ASSESSEE HERE IS A SUCCESSOR OF SPIL DADRA UNDERTAKING AS H AS BEEN DISCUSSED AT LENGTH IN ITATS ORDER . THEREFORE, THE RATIO OF TH IS JUDGMENT OF HONBLE MADRAS HIGH COURT SUPPORTS THE CASE OF THE ASSESEE BECAUSE THERE WAS NO MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 16 RELATIONSHIP OF LESSEE AND LESSOR BETWEEN SPIL AND SPI THE ASSESSEE. THE NON ELABORATION OF SUCH JUDGMENT OF HONBLE MADRAS HIG H COURT DOES NOT CONSTITUTE A MISTAKE APPARENT FROM RECORD UNDER SEC TION 254(2) OF THE ACT AND THE APPLICATION OF THE REVENUE, ACCORDINGLY WIT H REFERENCE TO FIRST LIMB OF SECOND MISTAKE IS REJECTED. 6. AS REGARDS THE THIRD MISTAKE POINTED OUT BY THE LD. DR ABOUT THE DECISION OF THE ITAT HAS BEEN MADE ON SPECULATION, GUESS, CONJECTURES AND SURMISES BY POINTING OUT THE ORDER OF ITAT AT PAGE 62 (TOPE LINES) AND IN PARA 27 AT PAGE 62 ITSELF, WHERE THE ITAT HAS USED THE WORD MUST HAVE, WOULD HAVE HAD WOULD HAVE BEEN ENTITLED, WE ARE OF THE VIEW THAT ITAT IN ITS ORDER DATED 11.06.2010 HAS EXTENSIVELY DEAL T WITH THE ENTIRE FACTUAL IN RELATION TO SETTING UP OF DADRA UNDERTAKING. THESE ARE LAID DOWN AT PAGES 11 TO 21 IN PARAS 5.4 & 5.5 OF ITATS ORDER. MOREOVER, IN VARIOUS SUCCEEDING PARAGRAPHS UPTO PAGE 26 PARA 5.14 OF ITATS ORDER, THE REASON FOR NO CLAIM OF DEDUCTION OF 80IB BY SPIL HAS BEEN DEALT WITH I N RESPECT OF SAID UNDERTAKING. THE ARGUMENTS OF THE LD. DR WERE ALSO EXTENSIVELY CONSIDERED AT PAGES 33 TO 42 PARAS 10 TO 10.10 OF ITATS ORDE R. THEREAFTER, HAVING RECONSIDERED THE REJOINDER OF THE ASSESSEE IN PARA S 11 TO 11.2 AT PAGES 42 TO 47 OF THE ITATS ORDER, FINALLY GAVE ITS FINDINGS O N PAGES 51 & 52 IN PARA MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 17 16. THE RELEVANT PORTION OF THE SAID PARA 16 FOR TH E SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: 16. THE MAIN CONTROVERSY BETWEEN THE PARTIES IS AS TO WHETHER THE PLANT AT DADRA COMMENCED COMMERCIAL PRODUCTION BEFO RE 31 ST MARCH, 2002 OR IN THE MONTH OF APRIL, 2003. FOR THAT PURPO SE, THEY HAVE RELIED ON VARIOUS EVIDENCES, WHICH INCLUDE APPLICATIONS TO THE VARIOUS AUTHORITIES FOR OBTAINING LICENSES AND PERMISSION F OR MANUFACTURING DRUGS, PERMANENT ELECTRIC CONNECTIONS, OBTAINED CAS H CREDIT LIMITS, CONSENT BY WORKERS TO WORK, HIRING OF GENERATORS IN CLUSION OF THE DADRA UNIT IN THE UNIT-WISE PROFIT AND LOSS ACCOUN T OF SPIL AND TRANSFER OF RAW MATERIAL, PLANT AND MACHINERY, APPL YING FOR CASH CREDIT LIMIT, PRODUCTIVITY BONUS PAYABLE ARE NOT PREPARATO RY ACTIVITY BUT WOULD BE TERMED AS SETTING UP OF BUSINESS LEADING T O COMMENCEMENT OF COMMERCIAL PRODUCTION. IT IS NOT CORRECT TO SAY THAT PRODUCTION COMMENCED ONLY ON 14.4.2003 DUE TO THE FACT THAT AU DITORS PAPERS SHOW WITH REMARKS NO COMMERCIAL PRODUCTION DONE. SMALL QUANTITY OF STOCK OLENZ RAPITAB, EXCISE RETURN FOR THE MONTH OF FEBRUARY,2002 REFLECTING PRODUCTS AND TARIFF ITEM NUMBERS, PAYMEN T OF BONUS TO EMPLOYEES, UTILIZATION OF MODVAT CREDIT, PAYMENT OF SALES TAX BY SPIL, STATEMENT OF DR. SHINDE THAT THE PLANT IS RE ADY TO COMMERCE, NEW REPORTS (28.03.2002), PRESS RELEASE (26.4.2002) , INTIMATION IN THE ANNUAL REPORT (01-02) OF SPIL AND MINUTES OF THE ME ETINGS CONFIRMING COMMENCEMENT OF PRODUCTION. NO PRODUCTION DURING F .Y. 2002-03 DOES NOT DISPROVE THE FACT ABOUT PRODUCTION BEFORE 31.3.2002. KEEPING IN VIEW THE FACTS NARRATED ABOVE WITH THE S UPPORT OF EVIDENCE, WE ARE OF THE CONSIDERED OPINION THAT THE PRODUCTIO N COMMENCED BEFORE 31.3.2002 THE ASSESSEE SOLD THE PRODUCTS, HE NCE THE STAGE OF TRIAL PRODUCTION HAD BEEN CROSSED. 6.1. CONSIDERING THE ABOVE, THE ITAT WHILE GIVING O RDER AS MENTIONED AT PAGE 62 OF THE ORDER, IT HAS ADEQUATELY USED THE WO RDS MUST HAVE WOULD HAVE WOULD HAVE BEEN ENTITLED, WHICH WERE CORR ECTLY USED TO INDICATE THE CORRECT FACTUAL POSITION, AS MENTIONED HEREINAB OVE. HENCE, WE FIND NO MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 18 MISTAKE UNDER SECTION 254(2) OF THE ACT, AS POINTED OUT BY THE LD. DR AND THE APPLICATION OF THE REVENUE WITH REFERENCE TO TH E THIRD MISTAKE IS REJECTED. 7. AS REGARDS THE FOURTH AND THE LAST MISTAKE ABOUT NON-DISPOSAL OF GROUND 2(A) BY ITAT IN ITS ORDER DATED 11.06.2010, WE FIND THAT THE ITAT HAS DEALT THE ENTIRE FACTUAL POSITION, INTER-ALIA T HE USE OF THE MACHINERY OR PLANT TILL PAGE 54 OF THE ITATS ORDER I.E. IMMEDIA TELY BEFORE PARA-18, WHICH DEALS WITH GROUND 2(B) AND THEREAFTER GROUND 2(C), 2(D) & 2(E). THE FINDING OF THE ITAT IS REITERATED AT PAGE 78 OF THE ORDER IN PARA 43.3, WHICH INCLUDES DISPOSAL OF GROUND 2(A) ALONGWITH OTHER GR OUNDS I.E. 2(B), 2(C), 2(D) & 2(E). FOR THE SAKE OF CLARITY, THE SAID FINDING O F ITAT IN PARA 43.3 AT PAGE 78 IS REPRODUCED AS UNDER: 43.3 KEEPING IN VIEW THE FACTS AND THE CIRCUMSTANC ES DISCUSSED ABOVE, WE ARE OF THE CONSIDERED OPINION THAT UNDER TAKING FORMED BY SPIL AT DADRA WAS QUALIFIED FOR DEDUCTION U/S 80IB AND THE FIRST YEAR IS TAKEN AS ASSESSMENT YEAR 2002-03 AND THE YEAR UN DER CONSIDERATION BECOME THE FOURTH YEAR OF THE UNDERTAKING AND ACCO RDINGLY THE BENEFIT OF DEDUCTION U/S 80IB NEEDS TO BE ALLOWED AS PER TH E PROVISIONS OF SECTION AND CIRCULAR OF CBDT, REFERRED TO HEREINABO VE. 8. THEREFORE, HAVING DEALT WITH GROUND 2(A) AS MENT IONED HEREINABOVE, WE FIND NO MISTAKE APPARENT FROM RECORD AS POINTED OUT BY THE LD. DR. THEREFORE, THE APPLICATION OF REVENUE WITH REFERENC E TO FOURTH AND LAST MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 19 MISTAKE IS REJECTED. THUS, M.A. NO.16(ASR)/2011 (AR ISING OUT OF ITA NO.184(ASR)/2009) DATED 11.06.2010) OF THE REVENUE IS REJECTED. 9. NOW, WE WILL DEAL WITH THE MISCELLANEOUS APPLICA TION FILED BY THE ASSESSEE IN MA. NO.08(ASR)/2011(ARISING OUT OF ITA NO.184(ASR)/2009) DATED 11.06.2010 FOR THE ASSESSMENT YEAR 2005-06. 10. THE LD. AR, SH. SUBHASH JALAN, CA, APPEARING ON BEHALF OF THE ASSESSEE POINTED OUT THE MISTAKE IN THE ORDER OF T HE ITAT, DATED 11.06.2010 IN THE LIGHT OF THE DECISION OF THE HONBLE HIGH CO URT OF JAMMU & KASHMIR IN THE CASE OF SHREE BALAJI ALLOYS &OTHERS , KATHU A VS. CIT REPORTED IN 333 ITR 335 HOLDING THAT CENTRAL EXCISE DUTY REFUND IS A CAPITAL RECEIPT AND HENCE NOT INCLUDIBLE IN THE INCOME AT ALL. THE DECI SION WITH RESPECT TO CENTRAL EXCISE DUTY IS REFERRED AT PAGES 76 & 77 I N PARAS 42 TO 42.3 OF ITATS ORDER DATED 11.06.2010. IT WAS ARGUED BY THE LD. AR THAT SUBSEQUENT DECISION OF JURISDICTIONAL HIGH COURT AND SUPREME COURT BECOMES A MISTAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT THE LD. AR HAD RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW AS UNDER IN SUPP ORT OF HIS ARGUMENTS: I) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2 008) 305 ITR 227 (SC) MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 20 II) KIL KOTAGIRI TEA & COFFEE ESTATES CO. LTD. VS. ITAT &ORS (1988) 174 ITR 579 (KERALA) III) M.K. KUPPURAJ VS. ITO & ANR. (1995) 853 (MAD) IV) CIT VS. SMT. ARUNA LUTHRA (2001) 252 ITR 75 (P&H) ( FB) V) CIT VS. SUBODHCHANDRA S. PATEL (2004) 265 ITR 445 ( GUJ.) VI) KAILASHNATH MALHOTRA VS. JCTI (2009) 34 SOT 541 (MUM.)(TM) VII) PADAM PRAKASH (HUF) VS. ITO (2011) 136 TTJ 257 (DEL HI) (SB) 10.1 IN ALL THE ABOVE SAID DECISIONS, PROPOSITION H AS BEEN LAID DOWN BY THE COURTS THAT THE JUDGMENT SUBSEQUENTLY RENDERED BY T HE JURISDICTIONAL HIGH COURT/SUPREME COURT WOULD CONSTITUTE AN ERROR APPAR ENT FROM RECORD WHICH IS RECTIFIABLE UNDER SECTION 154 & 254(2) OF THE AC T. SINCE THE DECISION OF THE HONBLE HIGH COURT OF JAMMU & KASHMIR IN THE CASE O F SHREE BALAJI ALLOYS &OTHERS , KATHUA VS. CIT (SUPRA) WAS NOT AVAILABLE AT THE TIME OF THE DECISION OF THE ITAT, DATED 11.06.2010, THE ITAT DE CIDED THESE ISSUES AGAINST THE ASSESSEE VIDE PARA 42 TO 42.3 AT PAGES 76 & 77 OF ITS ORDER. 11. THE LD. DR, MR. TARSEM LAL, ARGUED THAT SUBSEQU ENT DECISION OF HE COURT DOES NOT RENDER THE MISTAKE RECTIFIABLE UNDE R SECTION 254(2) OF THE ACT. THE SAID DECISION OF THE HONBLE HIGH COURT OF J & K IN THE CASE OF SHREE BALAJI ALLOYS &OTHERS , KATHUA VS. CIT (SUPRA ) WAS NOT AVAILABLE AT THE TIME OF ITATS ORDER DATED 11.06.2010. MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 21 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE ARE OF THE VIEW THAT LAW IS VERY CLEAR ON THE IS SUE THAT IF THE ISSUE IS COVERED BY THE DECISION OF HIGH COURT IS REVERSED P RIOR OR EVEN SUBSEQUENT TO THE RECTIFICATION OF THE ORDER, IT CAN BE SAID TO BE A MISTAKE APPARENT FROM RECORD U/S 254(2) OF THE ACT AND COULD BE CORRECTE D BY THE TRIBUNAL. THESE VIEWS ARE EXPRESSED BY THE HONBLE SUPREME COURT, I N THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC) AND OTHER DECISIONS RELIED UPON BY THE LD. AR, HEREINABOVE. I N THE PRESENT CASE, THE ISSUE IS THE TREATMENT OF CENTRAL EXCISE DUTY REFU ND. THE ITAT HAD DECIDED THE ISSUE AGAINST THE ASSESSEE, WHICH VIEW HAS BEEN REVERSED BY THE HONBLE J & K HIGH COURT IN THE CASE OF SHREE BALAJ I ALLOYS & OTHERS, KATHUA VS. CIT (SUPRA) AFTER THE DECISION OF THE IT AT IN ITS ORDER DATED 11.06.2010. FOLLOWING THE JUDGMENT OF HONBLE SUPRE ME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD.(SU PRA) AND OTHER DECISIONS RELIED UPON BY THE LD. COUNSEL HEREINABOV E, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE J & K HIGH COURT IN THE CASE OF SHREE BALAJI ALLOYS & OTHERS, KATHUA VS. CI T (SUPRA), THEREFORE IT CONSTITUTES A MISTAKE APPARENT FROM RECORD U/S 254( 2) OF THE ACT. HENCE, THE SAID DECISION OF THE ITAT DATED 11.06.2010 IN PARA S 42 TO 42.3 (PAGES 76 & 77) IS RECALLED FOR FRESH ADJUDICATION. THE REGISTRY IS DIRECTED TO FIX UP THE MA NO.16(ASR)/2011 & MA NO.08(ASR)/2011 22 MATTER FOR HEARING ON 07/06/2012. THUS, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN MA NO.08(ASR)/2011 IS ALLO WED. 13. IN THE RESULT, MA NO.16(ASR)/2011 OF THE REVENU E IS DISMISSED AND MA NO.08(ASR)/2011 OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD MAY, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23RD MAY, 2012 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE:M/S. SUND PHARMACEUTICALS INDUSTRIES, JAMMU. 2. THE ITO WARD 1(3), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.