Calcutta High CourtEih Ltd vs Commissioner Of Income Tax on 28 April, 2011Author:Bhaskar BhattacharyaBench:Bhaskar Bhattacharya1


                             ITA No. 183 of 2002

                     IN THE HIGH COURT AT CALCUTTA

                   Special Jurisdiction (Income Tax)

                                ORIGINAL SIDE



EIH LTD.                                        Appellant

    Versus

COMMISSIONER OF INCOME TAX                      RespondentMr. J.P. Khaitan, Sr. Advocate
                           for the Appellant.Mr. R. N. Bandopadhyay with Mr.
                           P.Dhudhonia, Advocates for the
                                             respondents.BEFORE:The Hon'ble JUSTICE BHATTACHARYA

The Hon'ble JUSTICE DR. SAMBUDDHA CHAKRABARTI

Date : 28th April, 2011.The Court :- This appeal is at the

      instance of an assessee and is directed against an order

      dated May 10, 2002 passed by the Income Tax Appellate

      Tribunal, D Bench, Kolkta in M. A. No. 29 (Cal) of 2001

      in I.T.A No. 3158(Cal) of 1992 for the assessment year

      1986-98 thereby allowing an application for rectification

      filed by the Revenue.2It appears from record that a Division Bench of

this    Court      has      formulated           the        following      substantial

question of law for decision in this appeal."Whether, the Tribunal had any jurisdiction to

        pass    the      order     dated    May       10,    2002    appealed     against

        modifying and/or substituting paragraph 9 of its order

        dated     30th     June,    2000    when       the    question      involved    is

        already pending adjudication before this Court in an

        appeal,       in    exercise       of    its    power       to   review   of   its

        earlier order?"It appears from record that while disposing of

ITA No. 3158(Cal) of 1992 for the assessment year 1986-87

the Tribunal below held that hotel building is to be

treated      as       "plant"        for        the     purpose           of     allowing

depreciation in terms ofsection 32of the Income Tax

Act.Being       dissatisfied,          the       Revenue       preferred    an

appeal being ITA No. 478 of 2000 before this Court undersection 260(A)of the Act and after filing of such appeal

filed   an      application         for         rectification            undersection

254(2)of the Act thereby alleging that there was an

error apparent on the face of the order of the Tribunal3in not taking note of a decision of the Supreme Court in

the case ofCommissioner of Income Tax vs. Anand Theatresreported in (2000) 244 ITR 192 (SC) in which the Supreme

Court took an opposite view holding that 'Hotel Building'

cannot be treated as 'plant' for the purpose of giving

benefit of depreciation undersection 32of the Act.By   the    order         impugned     in    this   appeal      the

Tribunal has rectified that mistake holding that in view

of   the   aforesaid    Supreme         Court    decision   there     was    an

apparent mistake and thus revoked the relief granted to

the assessee by the order impugned.Being dis-satisfied, the assessee has come up

with the present appeal.Mr. Khaitan, learned Senior Advocate appearing

on behalf of the appellant, has taken a pure question of

law in support of this appeal. According to Mr. Khtitan,

the Revenue having already preferred an appeal against

the order of the Tribunal, the subsequent application for

rectification       undersection       254(2)of    the   Act   on    the

selfsame    point    was    not       maintainable.      According    to    Mr.

Khaitan the Tribunal should not have touched its order

once it is brought to its notice that the applicant for

rectification has already availed of the right of appeal

and such appeal was pending before the superior Court.4Mr.   Banerjee,        learned    Counsel       appearing    on

behalf of the Revenue has, however, opposed the aforesaid

contention of Mr. Khaitan and has contended that the law

having given a concurrent remedy in favour of his client,

the Tribunal below was quite justified in allowing the

application       for     rectification     notwithstanding         the     fact

that his client had already availed of the remedy of

appeal     by    preferring       a    regular    appeal    undersection

260(A)of the Act.After hearing learned Counsel for the parties

and after examining the provisions contained inSection

254(2)of the Act, we find that unlike the provision of

review contained insection 114of the Code of Civil

Procedure,        there      is   no     restriction       of    filing      any

application for rectification after a party has availed

of   the   remedy       of   appeal     against    the     selfsame    order.

Therefore, the intention of the Legislation was to confer

concurrent remedy of both the appeal and the right of

rectification against selfsame order. We are, therefore,

unable to accept the extreme contention of Mr. Khaitan

that after a party has preferred an appeal undersection

260(A)of the Act, it cannot apply undersection 254(2)of the Act for rectification.5On     merit          we         find     that       the      ground     of

rectification         was       a    just        ground       for       rectifying     themistake in view of the fact that on the date of disposal

of the appeal before the Tribunal, i.e. 30th June, 2000,

the decision of the Supreme Court in the case ofAnand

Theatres(supra)         was     already         in    existence,the   said

judgmentof the Supreme Court having been delivered on

May 12, 2000, although the decision was not reported on

that day.It is now settled law as held by the Supreme

Court in the case ofAssistant Commissioner of Income-tax

vs. Sourashtra Kutch Stock Exchange Limitedreported in

(2008) 305 ITR 227 that non-consideration of a decision

of jurisdictional Court or of Supreme Court should be

taken     to    be        a    'mistake          apparent       from      the     record'.Therefore,          the       Tribunal      below        rightly        rectified      its

mistake    once       its       attention         was       drawn    to     the    binding

precedent      of     Supreme        Court        in    case    ofAnand     Theatres(supra).We,    thus,         find    no     merit      in     this    appeal    and

consequently,         the       same       is    dismissed         by    answering     the

formulated          question         in     the        affirmative          against    the

assessee.6In   the   facts       and   circumstances   there   will,

      however, no order as to costs.Urgent photostat certified copy of this order, if

      applied for, be supplied to the parties subject to

      compliance with all requisite formalities.(BHATTACHARYA, J.)



                            (DR. SAMBUDDHA CHAKRABARTI, J.)
dg/