SMS Paryavaran (P) Ltd, New Delhi V. ACIT Circle 9 (1), New Delhi

MA 7/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3554 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-04-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 04-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: VIJAY KALE
• Keywords: Business income; Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH G DELHI ] BEFORE SHRI RAJPAL YADAV, JM & SHRI K. D. RA NJAN, AM MISC. APP. NOS. 06 & 07 (DEL) OF 2010. [ IN I. T. APPEAL NOS. 4334 & 4335 (DEL) OF 2007 ] ASSESSMENT YEARS : 2002-03 & 2003-04. M/S. S M S PARYAVARAN PVT. LTD., ASSTT. COMMISSIONER OF INCOME-TA X, E 1 / 4, SECTOR 7, VS. C I R C L E : 9 (1), R O H I N I, N E W D E L H I. N E W D E L H I. PAN / GIR NO. AAA CS 2177 F. ( APPLICANT ) ( RESPONDENT ) ASSESSEE BY : SHRI VIJAY KALE, C. A.; DEPARTMENT BY : SHRI H. K. LAL, SR. D. R.; O R D E R. PER K. D. RANJAN, AM : THE ASSESSEE VIDE THESE MISC. APPLICATIONS FOR ASSE SSMENT YEARS 2002-03 AND 2003-04 HAS STATED THAT THE ASSESSEE COMPANY MADE FIXED DEPOSIT S FOR THE PURPOSE OF MARGIN MONEY. THE INTEREST EARNED ON THE FUNDS KEPT IN BANK AS MARGIN MONEY IS ABSOLUTELY INCIDENTAL TO THE BUSINESS OF THE ASSESSEE, BECAUSE WITHOUT MARGIN MONEY OR FI XED DEPOSIT THE BANK COULD NOT HAVE ISSUED BANK GUARANTEE AND WITHOUT BANK GUARANTEE THE CONTR ACT COULD NOT HAVE BEEN AWARDED RESULTING INTO BUSINESS. THEREFORE, THE INTEREST EARNED BY T HE ASSESSEE ON FIXED DEPOSITS WAS ASSESSABLE 2 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. UNDER THE HEAD 'INCOME FROM BUSINESS'. HOWEVER, TH E TRIBUNAL WHILE DECIDING THE REVENUE'S APPEAL HAS TREATED THE INTEREST TO BE ASSESSED AS E ARNED FROM 'OTHER SOURCES'. THEREFORE, IT HAS BEEN SUBMITTED THAT THE INTEREST INCOME SHOULD BE T REATED AS BUSINESS INCOME AND NOT AS INCOME FROM 'OTHER SOURCES'. IT HAS ALSO BEEN ALTERNATIVE LY ARGUED THAT THE EXPENSES INCURRED ON INTEREST INCOME SHOULD BE ALLOWED TO BE SET OFF FROM THE INC OME. 2. BEFORE US THE LD. AR OF THE ASSESSEE REITERATED THE SIMILAR ARGUMENTS. ON THE OTHER HAND, THE LD. SR. DR SUPPORTED THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IN THE RETURN OF INCOME TREATED THE INTERE ST EARNED ON FDRS. AS BUSINESS INCOME AND CLAIMED DEDUCTION UNDER SECTION 80-IA OF THE AC T ON SUCH INTEREST INCOME. THE ISSUE BEFORE US IN REVENUE'S APPEAL IN BOTH THE YEARS WAS WHETHER INTEREST OF RS.5,34,782/- FOR ASSESSMENT YEAR 2002-03 AND RS.7,54,771/- FOR ASSES SMENT YEAR 2003-04 EARNED ON FDRS. WAS ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA. WHILE DECIDING THE ISSUE WE HAVE HELD RELYING ON DECISION OF HON'BNLE SUPREME COURT IN THE CASE O F PANDIAN CHEMICALS VS. CIT 262 ITR 278 (SC) AND ALSO ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SHRI RAM HONDA POWER EQUIP. 289 ITR 475 (DEL.) THAT INTE REST INCOME EARNED ON FDRS. WAS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA OF THE A CT. THE TRIBUNAL HAS PASSED A SPEAKING ORDER AS UNDER :- ' 8. WE HAVE HEARD BOTH THE PARTIES AND PERU SED THE MATERIAL AVAILABLE ON RECORD. UNDER SECTION 80IA, WHERE THE GROSS TOTAL INCOME OF THE ASSESSEE INCLUDES ANY PROFITS AND GAINS DERIVED BY UNDERTAKING OR AN ENTERPRISE F ROM ANY BUSINESS REFERRED TO IN SUB- SECTION (4) (SUCH BUSINESS BEING HEREINAFTER REFERR ED TO AS THE ELIGIBLE BUSINESS), THERE SHALL BE, IN ACCORDANCE WITH AND SUBJECT TO PROVISI ONS OF SECTION 80IA, BE ALLOWED IN COMPUTING THE TOTAL INCOME OF ASSESSEE A DEDUCTION OF AN AMOUNT SPECIFIED IN THE SECTION. SUB-SECTION (4) OF SECTION 80IA SPECIFIES THE BUSIN ESS ELIGIBLE FOR DEDUCTION U/S 80IA. THEREFORE, THE DEDUCTION U/S 80IA WILL BE AVAILABLE IN RESPECT OF INCOME OF BUSINESS OF DEVELOPING OR OPERATING AND MAINTAINING OR DEVELOPI NG, OPERATING AND MAINTAINING ANY 3 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. INFRASTRUCTURE FACILITY WHICH HAS ALSO TO FULFILL T HE CONDITIONS SPECIFIED IN CLAUSE (A) (B) AND (C) OF SUB-SECTION (4) OF SECTION 801A. ADMITTE DLY, IN THE CASE BEFORE US THE BUSINESS OF ASSESSEE IS CONSISTED OF PROVIDING INFRASTRUCTUR E FACILITIES AS DESIGN AND CONSTRUCTION OF WATER TREATMENT PLANT, SEWAGE TREATMENT PLANT AND W ATER SUPPLY SCHEME. THE NATURE OF INTEREST EARNED FROM FIXED DEPOSITS IS TO BE EXAMIN ED WHETHER THE SAME HAS BEEN DERIVED FROM BUSINESS OF PROVIDING INFRASTRUCTURE FACILITIE S. IN THE CASE OF PANDIAN CHEMICALS LTD. V/S CIT. 262 ITR 278 (SC), HONBLE SUPREME COURT HA S HELD THE INTEREST DERIVED BY THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE ON DEPOSITS MADE WITH THE TAMILNADU ELECTRICITY BOARD FOR THE SUPPLY OF ELECTRICITY FOR RUNNING THE INDUSTRIAL UNDERTAKING COULD NOT BE SAID TO FLOW DIRECTLY FROM THE INDUSTRIAL UNDERTAKI NG ITSELF AND WAS NOT PROFITS OR GAINS DERIVED BY THE UNDERTAKING FOR THE PURPOSE OF SPECI AL DEDUCTION U/S 80-HH. HONBLE SUPREME COURT ALSO HELD THAT THE WORDS DERIVED FRO M APPEARING IN SECTION 801-JR OF THE INCOME TAX ACT, 1961 MUST BE UNDERSTOOD AS SOME THING WHICH HAS A DIRECTOR IMMEDIATE NEXUS WITH THE ASSESSEES INDUSTRIAL UNDE RTAKING. ALTHOUGH ELECTRICITY MAY BE REQUIRED FOR THE PURPOSES OF INDUSTRIAL UNDERTAKING , THE DEPOSIT REQUIRED FOR ITS SUPPLY WAS A STEP REMOVED FROM THE BUSINESS OF INDUSTRIAL UNDERTAKING. HONBLE SUPREME COURT IN THE CASE OF CAMBAY ELECTRIC SUPPLY INDUSTRIAL CO LTD V CIT 113 ITR 84 HAS HELD THAT THAT THE LEGISLATURE HAS DELIBERATELY USED THE EXPR ESSION ATTRIBUTABLE TO HAVING A WIDER IMPORT THAN THE EXPRESSION DERIVED FROM, THEREBY INTENDING TO COVER RECEIPTS FROM SOURCES OTHER THAN THE ACTUAL CONDUCT OF BUSINESS O F THE SPECIFIED INDUSTRY. IN SECTION 80- IA THE LEGISLATURE HAS USED EXPRESSION DERIVED FRO M AND NOT ATTRIBUTABLE TO. AN INCOME MAY BE ATTRIBUTABLE TO BUSINESS BUT SUCH INC OME CANNOT BE HELD TO BE DERIVED FROM BUSINESS OF INDUSTRIAL UNDERTAKING FOR THE PUR POSES OF SECTION 80-IA UNLESS IT HAS DIRECT NEXUS WITH THE BUSINESS OF INDUSTRIAL UNDERT AKING. IN THE INSTANT CASE, THE FIXED DEPOSITS WERE OBTAINED FOR THE PURPOSE OF OBTAINING BANK GUARANTEES REQUIRED AS PER TERMS AND CONDITIONS OF CONTRACT AWARDED TO ASSESSE E. HOWEVER, SUCH INTEREST EARNED DOES NOT DIRECTLY SPRING FROM THE BUSINESS OF INDUS TRIAL UNDERTAKING OF PROVIDING INFRASTRUCTURE FACILITIES AS DESIGN AND CONSTRUCTIO N OF WATER TREATMENT PLANT ETC. THOUGH THE SAME WAS ESSENTIAL TO OBTAIN THE CONTRACT. THE FACTS OF THE ASSESSEES CASE ARE SQUARELY COVERED BY THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PANDIAN CHEMICALS LTD. V/S CIT (SUPRA). THE LD. CIT(A) HAS PLACED RELIANCE ON THE DECISION OF 4 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. HONBLE BOMBAY HIGH COURT IN THE CASE OF PARAMOUNT PREMISES P. LID. WHEREIN IT HAS BEEN HELD BY THE TRIBUNAL THAT THE INTEREST SPRANG FROM THE BUSINESS ACTIVITIES OF THE ASSESSEE AND DID NOT ARISE OUT OF ANY INDEPENDENT A CTIVITY. THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF PANDIAN CHEMIC ALS IS A SUBSEQUENT TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF PARAMOU NT PREMISES P. LTD. AND THEREFORE THE SAME HAS TO BE FOLLOWED BEING THE APEX COURT OF THE COUNTRY. FURTHER HONBLE DELHI HIGH COURT IN THE CASE OF CIT V/S SRIRAM HONDA POWE R EQUP., 289 ITR 475 HELD THAT INTEREST EARNED ON FIXED DEPOSIT FOR THE PURPOSE OF AVAILING CREDIT FACILITIES FROM THE BANK DOES NOT HAVE ANY IMMEDIATE NEXUS WITH THE EXPORT B USINESS AND THEREFORE HAS TO BE NECESSARILY BE TREATED AS INCOME FROM OTHER SOURCES AND NOT BUSINESS INCOME. THE RATIO OF DECISION IS ALSO APPLICABLE IN THE INSTANT CASE AS THE INTEREST EARNED FROM FIXED DEPOSITS DOES NOT HAVE IMMEDIATE NEXUS WITH THE BUSINESS OF INDUSTRIAL UNDERTAKING OF PROVIDING INFRASTRUCTURE FACILITIES. RESPECTFULLY FOLLOWING T HE DECISION OF HONBLE SUPREME COURT IN THE CASE OF PANDIAN CHEMICAL LTD. (SUPRA) IT IS HEL D THAT ASSESSEE WILL NOT BE ENTITLED DEDUCTION U/S 8O-IA ON INTEREST INCOME. FOR THE SAM E REASONS THE DECISIONS OF VARIOUS HIGH COURTS RELIED UPON BY ASSESSEE IN WRITTEN SUBM ISSIONS WILL NOT BE APPLICABLE FOR THE PURPOSES OF DEDUCTION UNDER SECTION SOIA IN VIEW OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF PANDIAN CHEMICAL LTD. (SUPRA). EVERY INCOME WHICH IS IN NATURE OF BUSINESS INCOME IS NOT ELIGIBLE FOR DEDUCTION UNDER SECTION BOIA. THE INTEREST INCOME ON FDRS MAY BE ATTRIBUTABLE TO BUSINESS BUT CERTAINL Y NOT DERIVED FROM THE BUSINESS ACTIVITIES OF INDUSTRIAL UNDERTAKING. IN OUR CONSI DERED VIEW, THE LD. CIT (A) HAD WRONGLY CONCLUDED THAT INTEREST INCOME WAS INELUDIBLE IN EL IGIBLE BUSINESS PROFITS OF THE INDUSTRIAL UNDERTAKING. WE ACCORDINGLY, SET ASIDE THE ORDER O F THE LD. C1T (A) AND RESTORED THE ORDER OF ASSESSING OFFICER IN RESPECT OF BOTH THE A PPEALS. 4. NOW THE ASSESSEE BY WAY OF MISC. APPLICATION IS SEEKING TO REVIEW THE ORDER. UNDER SECTION 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY T IME WITHIN THE PERIOD OF FOUR YEARS FROM THE DATE O F THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE AP PARENT FROM RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) OF SECTION 254, AND SHALL MAK E SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. TH US WHAT CAN BE RECTIFIED IS A MISTAKE APPARENT FROM 5 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. RECORDS. AN ERROR APPARENT ON RECORD MEANS AN ERRO R WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG-DRAWN OUT PROCESS OF REASONING ON THE P OINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRAN EOUS MATTER TO SHOW ITS INCORRECTNESS. ITAT DELHI BENCH C NEW DELHI IN THE CASE OF VIJAY KANT SHARM A (KARTA, HUF) M.A. NO 265/D/2007 IN I.T.A. NO. 3391/D/2004 FOR ASSESSMENT YEAR 2001-02 ORDER DATE D 24.04.2009 (WHERE TO ONE OF US (A.M) WAS PARTY) EXAMINED THE SCOPE OF RECTIFICATION U/S 25 4(2) IN THE LIGHT OF DECISIONS OF HONBLE DELHI HIG H COURT AS BELOW: 13.................THE SCOPE OF RECTIFICATION U/S 254(2) THAT THE TRIBUNAL IS VERY LIMITED AND HAS BEEN DISCUSSED BY THEIR LORDSHIPS OF DELHI HIGH COURT IN THEIR VARIOUS DECISIONS, FEW OF WHICH ARE MENTIONED HEREIN UNDER :- I. IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. IN COME-TAX APPELLATE TRIBUNAL AND OTHERS, [2007] 293 ITR 118 (DELHI), THEIR LORDSHIPS WHILE EXAMINING THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) OF THE INCOME TAX ACT , 1961 HAVE OBSERVED AS UNDER: - THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254 (2) OF THE INCOME TAX ACT, 1961 IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE INCOME-TAX (APPELLATE TRIBUNAL) RULES, 19 63, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE C AUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND WAS DECIDED E X PARTE. WHAT IS SIGNIFICANT IS THAT THE SECTION ENVISAGES AMENDMENT OF THE ORIG INAL ORDER OF THE TRIBUNAL AND NOT A TOTAL SUBSTITUTION THEREOF. THE ORDER PASSED BY THE TRIBUNAL UNDER SECTION 254 (1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER SECTION 254 (2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER A S AMENDED OR REMAINING UNAMENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSES. THE SAME CONTINUES TO BE AN ORDER UNDER SECTION 254 (1). THAT IS THE FINAL ORDER IN THE APPEAL. AN 6 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. ORDER UNDER SECTION 254 (2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UNDER SECTION 254 (1). THEREAFTER, THEIR LORDSHIPS HELD AS UNDER: - HELD, ALLOWING THE PETITION, THAT THE TRIBUNA L WAS NOT JUSTIFIED IN RECALLING THE ORDER PASSED BY IT IN TOTO AND SETTIN G THE MATER DOWN FOR A FRESH HEARING. JUST BECAUSE A PRONOUNCEMENT MADE ON THE SUBJECT EITHER BY THE TRIBUNAL OR BY ANY OTHER COURT WAS NOT NOTICED BY T HE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERITS OF THE CONTROVERSY MA Y CONSTITUTE AN ERROR THAT WOULD CALL FOR CORRECTION IN AN APPROPRIATE APPEAL AGAINST THE ORDER. ANY SUCH ERROR MAY, HOWEVER, FALL SHORT OF CONSTITUTING A MI STAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2). JUST BECAUSE A POINT WAS DEBATABLE COULD HARDLY PROVIDE A JUSTIFICATION FOR RECALLING THE ORDER AND FIXING THE APPEAL FOR A DE NOVO HEARING. THEREFORE, THE O RDER OF RECALL PASSED BY THE TRIBUNAL WAS QUASHED. II. IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. H INDUSTAN COCA COLA BEVERAGES P. LTD., [2007] 293 ITR 163 (DELHI), THEI R LORDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBUNAL UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 OBSERVED AS UNDER: - UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER, IT IS P LAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR R ECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGE R CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PREREQUISITE FOR EXERCISE OF EITH ER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATU RE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF T HE ORDER SOUGHT TO BE RECTIFIED. WHERE IT IS SHOWN TO THE COURT IN APPEAL THAT A GRO UND THAT HAS BEEN SPECIFICALLY RAISED IN THE MEMO OF APPEAL BEFORE THE TRIBUNAL HA S NOT BEEN CONSIDERED BY IT, THAT CAN PERSUADE THE COURT, IF THE CIRCUMSTANCES S O JUSTIFY, TO REMAND THE CASE TO THE TRIBUNAL FOR CONSIDERATION OF THAT GROUND. 7 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. III. IN THE CASE OF RAS BIHARI BANSAL VS. COMMISSIO NER OF INCOME-TAX AND ANOTHER, [2007] 293 ITR 365 (DELHI) THEIR LORDSHIPS HELD AS UNDER: - SECTION 254 ENABLES THE CONCERNED AUTHORITIES TO R ECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE U NDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN A RGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. T HE MERE FACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE C ONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTIO N 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFIC ATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTE R, WHICH IS BEYOND THE SCOPE OF THIS SECTION. 14. WHAT EMERGES FROM THE DECISIONS (SUPRA) OF THE HONBLE JURISDICTIONAL HIGH COURT OF DELHI FOR EXAMINING THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) OF INCOME TAX ACT CAN BE SUMMARIZED AS UNDER: - FIRST, THE SCOPE AND AMBIT OF APPLICATION OF SECTIO N 254 (2) OF INCOME TAX ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAKES APPAREN T FROM THE RECORD. SECOND, POWER TO RECTIFY A MISTAKE IS NOT EQUIVALEN T TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. THIRD, U/S 254 (2) AN OVERSIGHT OF FACT CANNOT CONS TITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER THE SECTION. FOURTH, FAILURE ON THE PART OF THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. FIFTH, EVEN IF ON THE BASIS OF A WRONG CONCLUSION T HE TRIBUNAL HAS NOT ALLOWED A DEDUCTION IT WILL NOT BE A GROUND FOR MOVING AN APP LICATION U/S 254(2) OF THE ACT. 8 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. LASTLY, IN THE GARB OF AN APPLICATION FOR RECTIFICA TION U/S 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF SECTION 254(2) OF INCOME TAX AC T. 5. KEEPING IN VIEW THE GUIDELINES ISSUED IN THE REC ENT DECISIONS BY THE HONBLE JURISDICTIONAL HIGH COURT OF DELHI, WE ALSO PROCEED TO CONSIDER AVERMENTS OF THE ASSESSEE CALLING FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT. IN THE INSTANT CASE, AS IS APPARENT FROM THE FACTS OF THE CASE, THE INCOME EARNED BY THE ASSESSEE ON F DRS HAS BEEN HELD TO BE ASSESSED UNDER THE HEAD OTHER SOURCES ON WHICH DEDUCTION U/S 80IA IS N OT AVAILABLE. THE TRIBUNAL HAS GIVEN DELAYED REASONING FOR THE SAME. IF THE APPLICANT ASSESSEE DOES NOT NOW AGREE WITH THE REASONING GIVEN BY THE TRIBUNAL, IT CANNOT BE SAID THAT AN APPARENT MI STAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH IS RECTIFIABLE U/S 254(2) OF THE ACT. THE BEN CH HAS DECIDED THE ISSUE AFTER TAKING ALL THE EVIDENCES ON RECORD. SINCE THE TRIBUNAL HAS PASSED THE ORDER AFTER CONSIDERING THE FACTS OF THE CASE, RELYING ON DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PANDIAN CHEMICALS (SUPRA), WE DO NOT FIND ANY MERITS IN THE APPLICATIONS FILED BY THE ASSESSEE THAT A MISTAKE APPARENT FROM RECORD HAS CREPT IN THE ORDER WHICH NEEDS TO BE REC TIFIED UNDER SECTION 254(2) OF THE ACT. THE ASSESSEE IS SEEKING REVIEW OF THE ORDER, WHICH IS N OT PERMISSIBLE IN VIEW OF DECISIONS OF HON'BLE DELHI HIGH COURT REFERRED TO ABOVE. ACCORDINGLY, T HE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. 6. IN THE RESULT, BOTH THE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. THE ORDER PRONOUNCED IN THE OPEN COURT ON : 23 RD APRIL, 2010. SD/- SD/- [ RAJPAL YADAV ] [ K. D. RANJ AN ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 23 RD APRIL, 2010. *MEHTA * 9 MISC. APP. NOS. 06 & 07 (DEL) OF 2010. COPY OF THE ORDER FORWARDED TO : - 1. APPLICANT. 2. RESPONDENT. 3. CIT, 4. CIT (APPEALS), 5. DR, ITAT, NEW DELHI. TRUE COPY. BY ORDER. ASSISTANT REGISTRAR, ITAT. 10 MISC. APP. NOS. 06 & 07 (DEL) OF 2010.