NIKHOLAS PIRAMAL (I) LTD, v. JCIT CIR-5,

MA 571/MUM/2009 | 1997-1998
Pronouncement Date: 17-02-2010 | Result: Allowed

Appeal Details

RSA Number 57119924 RSA 2009
Assessee PAN AAACN4538P
Bench Mumbai
Appeal Number MA 571/MUM/2009
Duration Of Justice 6 month(s)
Appellant NIKHOLAS PIRAMAL (I) LTD,
Respondent JCIT CIR-5,
Appeal Type Miscellaneous Application
Pronouncement Date 17-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted I
Tribunal Order Date 17-02-2010
Assessment Year 1997-1998
Appeal Filed On 17-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH MUMBAI BEFORE SHRI D.K. AGARWAL JM & SHRI R.K. PANDA AM M.A. NO. 571/MUM/2009 ARISING OUT OF I.T.A. NO. 4379/MUM/2005 (ASSESSMENT YEAR 1997-98) M/S. NICHOLAS PIRAMAL INDIA LTD. (SUCCESSOR IN BUSINESS OF RHONE- POULENC (I) LTD.) 4 TH FLOOR PIRAMAL TOWER ANNEXE GANPATRAO KADAM MARG LOWER PAREL MUMBAI-400 013 PAN: AAACN4538P VS. JT. CIT RANGE 8 MUMBAI APPELLANT RESPONDENT APPELLANT BY: MR. J.P. BAIRAGRA RESPONDENT BY: MR. P.C. MORYA O R D E R DATE OF HEARING: 05.02.2010 DATE OF ORDER: 17.02.2010 PER R.K. PANDA AM: THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO RECTIFY/RECALL THE GROUNDS OF APPEAL NO. 2 IN ASSESSEES APPEAL VIDE I.T.A. NO. 4379/MUM/2005 ON THE GROUND THAT THE ORDER WAS PASSED BY THE TRIBUNAL WITHOUT CONSIDERING THE CORRECT FACTS ARGUMENTS AND DISTINGUISHABLE FACTS OF THE CASE RELIED ON AND WITHOUT CONSIDERING AND DISCUSSING THE VARIO US DECISIONS OF THE TRIBUNAL JURISDICTIONAL HIGH COURT AND OF THE HONBLE SUPREME COURT CITED BEFORE THE TRIBUNAL IN THE SHAPE OF WRI TTEN SUBMISSIONS AS WELL AS ARGUMENTS. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSING OFFICER IN THE ASSESSMENT ORDER DISALLOWED MARKETING KNOW-HOW EXPENDITURE AMOUNTING TO RS.2.70 CRORES TREATING TH E SAME AS M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 2 CAPITAL EXPENDITURE AS AGAINST REVENUE EXPENDITURE TREATED BY THE ASSESSEE ON THE GROUND THAT THE SAME HAD BEEN INCUR RED IN CONNECTION WITH THE ACQUISITION OF A NEW LINE OF BU SINESS. 3. IN APPEAL THE CIT(A) FOLLOWING THE DECISION IN THE CASE OF JONAS WOODHEAD & SONS (INDIA) LTD. VS. CIT REPORTED IN 224 ITR 342 AND THE DECISION OF THE HONBLE MADRAS HIGH COU RT IN THE CASE OF CIT VS. W.S. INSULATORS OF INDIA LTD. REPORTED IN 243 ITR 348 HELD THAT THE SUM OF RS.2.70 CRORES INCURRED BY THE ASSESSEE ON ACCOUNT OF TRANSFER OF GENERIC BUSINESS MARKET KNO W-HOW AND NON-COMPETITION AGREEMENT IS CAPITAL IN NATURE. HE ACCORDINGLY UPHELD HE ORDER OF THE ASSESSING OFFICER. WHEN THE MATTER CAME TO THE TRIBUNAL THE TRIBUNAL VIDE ORDER DATED 11 TH JUNE 2009 UPHELD THE ORDER OF THE CIT(A) AND DISMISSED THE GROUND RA ISED BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO P AGE 7 OF THE ORDER OF THE TRIBUNAL REFERRED TO THE FOLLOWING OBSERVATION OF THE TRIBUNAL: THE THREE SEPARATE AGREEMENTS DATED 27.1.1997 BETW EEN THE ASSESSEE COMPANY AND M/S. MAX INDIA LTD. BIFURC ATING THE CONSIDERATION OF RS.3.25 CRORES INTO THREE PART S FOR ACQUISITION OF THREE DIFFERENT RIGHTS IS NOT ONLY A FTERTHOUGHT BUT ALSO SEEMS TO BE SELF-SERVING DOCUMENT. 5. REFERRING TO PAGE 4 OF THE PAPER BOOK THE LEARNED C OUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO CLAUSE 5 OF MOU DATED 9.11.1996 WHERE IT HAS BEEN MENTIONED THAT TH E SAID PURCHASE CONSIDERATION OF RS.3.25 CRORES IS DIVIDED INTO THREE HEADS AND WHICH READ AS UNDER: 5. PURCHASE CONSIDERATION (I) PURCHASE CONSIDERATION FOR THE SALE/ASSIGNMEN T OF THE BRANDS GENERIC BUSINESS THE RELATED TECHNICAL M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 3 AND MARKETING KNOW-HOW BY MAX INDIA IN FAVOUR OF RPIL SHALL BE AS FOLLOWS: A) AN AMOUNT OF RS.270 LAKHS (RUPEES HUNDRED SEVEN TY LAKHS ONLY) PAYABLE FOR RPIL TO MAX INDIA FOR PROVIDING MARKETING KNOW-HOW; B) AN AMOUNT OF RS. 5 LACS (RUPEES FIVE LACS ONLY) PAYABLE FOR RPIL TO MAX INDIA FOR PROVIDING TECHNICAL KNOW-HOW. C) AN AMOUNT OF RS.50 LACS (RUPEES FIFTY LACS ONLY ) PAYABLE BY RPIL TO MAX INDIA FOR SALE/ASSIGNMENT OF THE BRANDS. 6. HE ACCORDINGLY SUBMITTED THAT THE TRIBUNAL WHILE DE CIDING THE ISSUE HAS NOT CONSIDERED THE CORRECT FACTS AS I T IS VERY CLEAR THAT BIFURCATION OF THE CONSIDERATION INTO THREE PARTS I S DONE IN MOU ITSELF AND NOT AS PER THE THREE AGREEMENTS ENTERED SUBSEQUENTLY TO GIVE EFFECT TO THE TERMS OF THE MOU. 7. REFERRING TO PAGE 8 OF THE TRIBUNALS ORDER HE SUB MITTED THAT THE TRIBUNAL HAS RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF JONAS WOODHEAD & SONS (INDIA) LTD. (SUPRA) WHICH WAS RELIED ON BY THE CIT(A) AND HELD THAT THE RATIO OF THE DECISION OF THE HONBLE SUPREME COURT APPLIES TO TH E CASE OF THE ASSESSEE. HOWEVER WHILE GIVING THIS FINDING THE T RIBUNAL HAS NOT AT ALL CONSIDERED THE WRITTEN NOTE SUBMITTED ON BEH ALF OF THE ASSESSEE COMPANY WHEREIN AT PAGE 12 IT HAS BEEN CLE ARLY POINTED OUT THAT THE SAID DECISION WHICH WAS ALSO RELIED ON BY THE CIT(A) IS NOT AT ALL APPLICABLE ON THE FACTS OF THE ASSESSEE S CASE SINCE THE FACTS OF THE ASSESSEE COMPANY ARE ENTIRELY DIFFEREN T. REFERRING TO PARA 10 OF THE ORDER OF THE TRIBUNAL WHERE THE TRIB UNAL HAS RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF WS INSULATORS (INDIA) LTD. (SUPRA) AND IN THE CASE OF TAMIL NADU DAIRY DEVELOPMENT CORPORATION LTD. VS. CIT REPORTED IN 23 9 ITR 142 AND M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 4 CHELPARK CO. LTD. VS. CIT REPORTED IN 191 ITR 249 HE SUBMITTED THAT THE TRIBUNAL WHILE UPHOLDING THE FINDING OF TH E CIT(A) HAS NOT CONSIDERED THE CONTENTION OF THE ASSESSEE GIVEN AT PAGE 14 OF THE WRITTEN NOTE WHEREIN THE VARIOUS CLAUSES OF THE MOU WERE MENTIONED AND THE DECISION OF HONBLE A.P. HIGH COU RT IN THE CASE OF COROMANDEL FERTILIZERS LTD. VS. CIT REPORTED IN 148 ITR 546 WAS RELIED ON. REFERRING TO VARIOUS DECISIONS AS MENTI ONED IN THE MA HE SUBMITTED THAT THE TRIBUNAL WHILE DISMISSING THE GROUND HAS NOT CONSIDERED AND DISCUSSED THE ARGUMENTS OF THE A SSESSEE COMPANY GIVEN IN THE WRITTEN NOTE THOUGH REFERENCE WAS MADE IN THE LAST PARA AT PAGE NO. 5 OF THE ORDER. HE SUBMI TTED THAT THE VARIOUS DECISIONS RELIED ON BY THE ASSESSEE WERE DI RECTLY ON THE ISSUE. HOWEVER THE TRIBUNAL WHILE DECIDING THE IS SUE HAS COMPLETELY IGNORED THE VARIOUS DISTINGUISHABLE FEAT URES BROUGHT ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE. REFERRING TO THE ORDER OF THE HONBLE SUPREME COURT IN THE CASE OF J ONAS WOODHEAD & SONS (INDIA) LTD. (SUPRA) HE SUBMITTED THAT THE HONBLE SUPREME COURT IN THE SAID DECISION HAS HELD THAT 25% OF THE SUM PAID AS ROYALTY BY THE ASSESSEE TO THE INSURANCE COMPANY IS TO BE DISALLOWED AS CAPITAL EXPENDITURE AND BALANCE 75% B E ALLOWED AS REVENUE EXPENDITURE. HOWEVER IN THE INSTANT CASE THE TRIBUNAL WHILE REJECTING THE CLAIM OF THE ASSESSEE BY RELYIN G ON THE ABOVE DECISION HAS NOT ALLOWED 75% OF RS.2.70 CRORES AS R EVENUE EXPENDITURE. HE SUBMITTED THAT A DECISION CANNOT B E PARTLY FOLLOWED. EITHER IT HAS TO BE FOLLOWED IN FULL OR NOT FOLLOWED BUT CANNOT BE FOLLOWED IN PART. 8. REFERRING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA & KUTCH STOCK EXCHANGE REPORTED IN 305 ITR 227 HE SUBMITTED THAT RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOV E ALL. IT IS EXERCISED TO REMOVE THE ERROR AND DISTURB THE FINAL ITY. REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN THE C ASE OF HONDA M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 5 SIEL POWER PRODUCTS LTD. VS. CIT REPORTED IN 295 IT R 466 HE SUBMITTED THAT THE HONBLE SUPREME COURT IN THE SAI D DECISION HAS HELD THAT NON CONSIDERATION OF MATERIALS ON RECORD AMOUNTS TO MISTAKE APPARENT FROM RECORD. REFERRING TO THE DEC ISION OF THE TRIBUNAL IN THE CASE OF JAYENDRA P. JHAVERI VS. ITO VIDE M.A. NO. 814/MUM/08 ARISING OUT OF I.T.A. NO. 68/MUM/04 AND C.O. NO. 166/MUM/07 ORDER DATED 2 ND APRIL 2009 HE SUBMITTED THAT THE TRIBUNAL IN THE SAID DECISION HAS HELD THAT NON CON SIDERATION OF THE DECISION CITED CONSTITUTES AN ERROR APPARENT ON REC ORD AND HENCE ORDER PASSED BY THE TRIBUNAL WAS RECALLED. REFERRI NG TO THE DECISION OF THE TRIBUNAL IN THE CASE OF MOHAN MEAKI N LTD. REPORTED IN 89 ITD 179 (DELHI) (TM) HE SUBMITTED THAT NON-CO NSIDERATION OF A JUDGEMENT CITED BEFORE THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. REFERRING TO THE DECISION OF THE TRIBUNAL IN THE CASE OF B. KARAMCHAND PIARELAL REPORTED IN 91 ITD 398 (ASR)(TM ) HE SUBMITTED THAT IN THE SAID DECISION THE TRIBUNAL WH ILE DECIDING THE APPEAL HAS NOT CONSIDERED THE JUDGEMENT CITED BY TH E ASSESSEE WHICH HAS BEARING ON POINT IN ISSUE. IT WAS ACCORD INGLY HELD APPROPRIATE FOR THE TRIBUNAL TO RECALL ITS ORDER FO R FRESH HEARING. RELYING ON A HOST OF OTHER DECISIONS AS PER THE MA HE SUBMITTED THAT SINCE THE TRIBUNAL HAS DECIDED THE ISSUE ON WR ONG APPRECIATION OF FACTS AND WITHOUT CONSIDERING THE S UBMISSION OF THE ASSESSEE THAT THE DECISIONS RELIED ON BY THE CI T(A) ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND IGN ORING THE VARIOUS DECISIONS RELIED ON BY THE ASSESSEE AND NOT RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN FULL THEREFORE A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL AND HENCE THE ORDER OF THE TRIBUNAL TO THIS EXTENT SHOULD BE RECALLED. 9. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT T HE TRIBUNAL HAS CONSIDERED ALL MATERIAL FACTS AND DECI DED THE ISSUE AGAINST THE ASSESSEE. THEREFORE THERE IS NO MISTA KE APPARENT FROM M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 6 RECORD SO AS TO RECALL THE ORDER OF THE TRIBUNAL. IT IS ONLY ASSUMPTION BY THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT THE LEARNED COUNSEL FOR THE ASSESSEE THROUGH T HIS MA IS TRYING TO ASK THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH I S NOT PERMISSIBLE UNDER THE LAW. HE ACCORDINGLY SUBMITTE D THAT THE MA FILED BY THE ASSESSEE SHOULD BE DISMISSED. 10. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BO TH THE SIDES. WE FIND THE TRIBUNAL WHILE DECIDING THE ISS UE AGAINST THE ASSESSEE HAS RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF JONAS WOODHEAD & SONS (INDIA) LTD. ( SUPRA) WHICH WAS RELIED ON BY THE CIT(A). HOWEVER WE FIND THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL H AS DISTINGUISHED THE ABOVE DECISION AND HAS CITED VARIOUS OTHER DECI SIONS INCLUDING THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F MADRAS AUTO SERVICE PVT. LTD. REPORTED IN 223 ITR 468 (SC) AND THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS . HEDE CONSULTANCY PVT. LTD. & ANR. REPORTED IN 258 ITR 38 3 WHICH ACCORDING TO THE ASSESSEE ARE DIRECTLY ON THE ISSUE . ALTHOUGH THESE DECISIONS WERE CITED BY THE ASSESSEE DURING THE COU RSE OF HEARING AS WELL AS MENTIONED IN THE WRITTEN SUBMISSIONS FIL ED BY IT HOWEVER WE FIND THE TRIBUNAL WHILE DECIDING THE IS SUE HAS INADVERTENTLY NOT AT ALL CONSIDERED THE ABOVE DECIS IONS. WE FURTHER FIND MERIT IN THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE DECISION IN THE CASE OF JONAS WOODHEAD & S ONS (INDIA) LTD. (SUPRA) WHICH WAS RELIED ON BY THE CIT(A) AND FOLLO WED BY THE TRIBUNAL HAS NOT BEEN CONSIDERED IN ITS ENTIRETY. WE FIND THE HONBLE SUPREME COURT IN THE SAID DECISION HAS HELD THAT A PART OF THE EXPENDITURE (25%) AS CAPITAL EXPENDITURE AND TH E BALANCE PART (75%) AS REVENUE EXPENDITURE WHEREAS IN THE INSTANT CASE THE ENTIRE EXPENDITURE HAS BEEN TREATED AS CAPITAL IN N ATURE. THEREFORE WE FIND MERIT IN THE SUBMISSION OF THE L EARNED COUNSEL FOR THE ASSESSEE THAT EITHER A DECISION HAS TO BE ACCEPTED IN FULL OR M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 7 REJECTED IN FULL BUT CANNOT BE ACCEPTED PARTLY AND THEREFORE TO THIS EXTENT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIB UNAL WHICH REQUIRES RECTIFICATION. 11. WE FIND THE HONBLE SUPREME COURT IN THE CASE OF HO NDA SIEL POWER PRODUCTS LTD. (SUPRA) AT PAGE 472 HAS HE LD AS UNDER: SCOPE OF THE POWER OF RECTIFICATION AS STATED ABOVE IN THIS CASE WE ARE CONCERNED WITH THE APPLICATION UNDER SECTION 254(2) OF THE 1961 AC T. AS STATED ABOVE THE EXPRESSION RECTIFICATION OF MISTAKE FROM THE RECORD OCCURS IN SECTION 154. IT ALSO FINDS PLACE IN SECTION 254(2). THE PURPOSE BEHIND T HE ENACTMENT OF SECTION 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFOR E THE TRIBUNAL BE IT AN ASSESSEE OR THE DEPARTMENT SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHIN G TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CASE THE TRIBUNAL IN ITS ORDER DATED SEPTEMBER 10 2003 ALLOWING THE RECTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR L TD. (SUPRA) WAS CITED BEFORE IT BY THE ASSESSEE BUT THR OUGH OVERSIGHT IT HAD MISSED OUT THE SAID JUDGMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER SECTIO N 43A. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SEE TH AT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEAR ING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARE NT FROM THE RECORD. RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY SECTION 254(2) OF THE INCOME-TAX ACT 1961. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE ERROR OR OMISSION THEN IT IS THE DUTY OF THE TRIBUNAL TO SE T IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE THE TRIBUNAL WAS JUSTI FIED IN EXERCISING ITS POWERS UNDER SECTION 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT O F THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNA L M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 8 WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HA D COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE IT HAS ACCORDINGLY RECTIF IED ITS ORDER. IN OUR VIEW THE HIGH COURT WAS NOT JUST IFIED IN INTERFERING WITH THE SAID ORDER. WE ARE NOT GOIN G BY THE DOCTRINE OR CONCEPT OF INHERENT POWER. WE ARE SIMPLY PROCEEDING ON THE BASIS THAT IF PREJUDICE HA D RESULTED TO THE PARTY WHICH PREJUDICE IS ATTRIBUTA BLE TO THE TRIBUNAL'S MISTAKE ERROR OR OMISSION AND WH ICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD B E JUSTIFIED IN RECTIFYING ITS MISTAKE WHICH HAD BEEN DONE IN THE PRESENT CASE. CONCLUSION FOR THE AFORESTATED REASONS THE IMPUGNED JUDGMENT OF THE HIGH COURT IS SET ASIDE AND THE ORDER PASSE D BY THE TRIBUNAL ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED. CONSEQUENTLY TH E APPEAL IS ALLOWED WITH NO ORDER AS TO COSTS. 12. SINCE THE VARIOUS DECISIONS RELIED ON BY THE LEARNE D COUNSEL FOR THE ASSESSEE WHICH ACCORDING TO HIM ARE DIRECTL Y ON THE ISSUE HAVE BEEN INADVERTENTLY NOT CONSIDERED AND SINCE T HE ASSESSEE DURING THE COURSE OF HEARING OF THE APPEAL HAS DIST INGUISHED THE DECISIONS RELIED ON BY THE CIT(A) WHICH HAVE BEEN F OLLOWED BY THE TRIBUNAL BUT WITHOUT CONSIDERING THE DISTINGUISHABL E FEATURES POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE AND SINCE THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F JONAS WOODHEAD & SONS (INDIA) LTD. HAS NOT BEEN FOLLOWED IN ITS ENTIRETY THEREFORE IN OUR OPINION AND IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POW ER PRODUCTS (SUPRA) A MISTAKE HAS CREPT IN THE ORDER OF THE TRI BUNAL WHICH REQUIRES RECTIFICATION U/S. 254(2) OF THE ACT. WE THEREFORE DEEM IT PROPER TO RECALL GROUNDS OF APPEAL NO. 2 OF THE ASS ESSEES APPEAL IN I.T.A. NO. 4379/MUM/05 FOR FRESH ADJUDICATION. THE REGISTRY IS DIRECTED TO REFIX THE HEARING OF THE APPEAL FOR THE LIMITED PURPOSE OF DECIDING GROUNDS OF APPEAL NO. 2 IN ASSESSEES A PPEAL IN NORMAL M.A. NO. 571/MUM/2009 M/S. NICHOLAS PIRAMAL INDIA LTD.. ====================== 9 COURSE. WE HOLD AND DIRECT ACCORDINGLY. THE MA FI LED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 13. IN THE RESULT THE MA FILED BY THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED ON 17 TH FEBRUARY 2010. SD/- (D.K. AGARWAL) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED 17 TH FEBRUARY 2010 COPY TO: (1) THE APPELLANT (2) THE RESPONDENT (3) THE CIT(A)-XIX MUMBAI (4) THE CIT CITY-7 MUMBAI (5) THE DR I BENCH ITAT MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO