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1997 DIGILAW 299 (HP)

H. P. F. C. v. THE COMMISSIONER OF INCOME-TAX

1997-07-24

A.L.VAIDYA, M.SRINIVASAN

body1997
JUDGMENT M. SRINIVASAN, C.J.—The Tribunal passed an order in the appeal preferred by the assessee in IT.A. No. 606/1984, The assessee was aggrieved thereby and filed an application for reference to the High Court with regard to two questions which are as follows : "1. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in allowing the assesses claim regarding interest due on sticky loans ? 2. Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in law in holding that the deduction u/s 36(1)(vii) of the income-tax Act, 1961 be allowed at the prescribed percentage of the total income computed before allowing deduction under Chapter VIA and also before taking into account the deduction allowable u/s 36(1) (viii) itself?" 2. When that application for reference was pending, the Revenue filed an application MP No. 19/88 for rectifying the order of the Tribunal under Section 254(2) relying upon a judgment of the Supreme Court in State Bank of Travancore v. CIT 158 ITR 102. In that judgment the Supreme Court has held that interest charged on sticky loan and credited to interest suspense account was taxable under the Income-tax Act and the same should be included in the income of the assessee. As the tribunal has taken a different view in its appellate order it rectified the mistake by referring the judgment of the Supreme Court which was brought in its notice in MP No. 19/88 by the Revenue. Consequently, the Tribunal ordered that the amount of interest of Rs. 27,57,363/- on sticky loans would be included in the income of the assessee on accrual basis as held by the Supreme Court. That order was passed on 21-3-1988. 3. When the reference application came before the Tribunal thereafter, an order was passed on 30-3-1988. In that order the Tribunal pointed out that only one of the questions will have to be referred to the High Court as the first question had become infructuous in view of the rectification of the order passed in MP. No. 19/88 on 21st of March, 1988. Consequently, the Tribunal referred, only the second question by order dated 30-3-1988. 4. Thereafter, the assessee filed M.P. No. 70/88 challenging the order passed by the Tribunal in the rectification proceedings. No. 19/88 on 21st of March, 1988. Consequently, the Tribunal referred, only the second question by order dated 30-3-1988. 4. Thereafter, the assessee filed M.P. No. 70/88 challenging the order passed by the Tribunal in the rectification proceedings. The assessee contended that there were several mistakes in the said order and required to be rectified. The Tribunal rejected into contention and dismissed MP No. 70/1988 by order dated 22-8-1988. 5. Then the assessee filed R.A. No. 168/88 for referring two questions to this Court for consideration under Section 256. The Tribunal passed an order on 16-11-1989 referring to this Court three questions which read as follows "1. Whether the Tribunal was justified in law in acquiring jurisdiction u/s 254(2) of the Act on a point sought to be referred to the High Court in a reference application ? 2. Whether on the facts and in the circumstances of the case, the Tribunal had the jurisdiction to rectify an admitted contentions and debatable matter under the provisions of Section 254(2) of the Act ? 3. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that interest on sticky loans is liable to be taxed on accrual basis?” 6. The contention of the assessee. in short, is that the Tribunal having passed an order in the Appeal in ITA No. 606/84 taking a particular view on the question of law which arose before it with regard to interest on sticky loan should not have modified that order on the pretext of rectification under Section 254(2) on the basis of a judgment of the Supreme Court. According to the learned counsel if the Tribunal had omitted to consider a binding judgment of the High Court or the Supreme Court it could not be rectified under Section 254(2) but it should be only by a proceeding for review It is argued that the Tribunal has no power of review as it has not been conferred by the statute on the said Tribunal. In this connection reliance is placed by the learned counsel on the judgment of the Orissa High Court in Commissioner of Income-tax v. Jagabandhu Roul, 1983 Tax LR 727. In this connection reliance is placed by the learned counsel on the judgment of the Orissa High Court in Commissioner of Income-tax v. Jagabandhu Roul, 1983 Tax LR 727. In that case the Tribunal dismissed the assessees Appeal but on application made under Section 254(2) for rectification the tribunal accepted the said application on the ground that the judgment of Orissa High Court in Commissioner of Income-tax v. Dandi Sahu, 105 I.T.R. 56 was not referred to by it in the appellate order. The Division Bench held that the Tribunal could have rectified the order only on an application for review and there was no power of review vested in it and consequently the exercise of power under Section 54(2) was not valid. According to the Division Bench of the Orissa High Court the matter cannot be brought for rectification under Section 254(2) on the ground that some binding judgment of the High Court or the Supreme Court were not placed before it earlier when the appeal was disposed of by it. 7. The ruling of the Division Bench will not apply to the present case. When the Supreme Court has decided a matter on a question of law it is the law of the land and it has to be followed by all the Tribunals and the Courts in this Country vide Article 141 of the Constitution of india. Hence, if the Tribunal had decided a matter over-looking the judgment of the Supreme Court on the question of law it is certainly a mistake apparent from the record. Such a mistake can certainly be rectified under Section 254 (2) of the Income-tax Act. That is what has been done by the Tribunal in the present case. Hence, the Tribunal was well within its jurisdiction in rectifying the mistake committed by it while disposing of the Appeal No. 606/1984. 8. Incidentally, we may also place on record the fact that the Supreme Court has reiterated the position in law in its judgment in Kerala Financial Corporation v. Commissioner of income-tax, AIR 1994 SC 2416 Thus, there can be no doubt whatever of the position in law. 9. Consequently, as regards first question we have no doubt in holding that when the matter was only being pending for reference, the Tribunal had jurisdiction under Section 254(2) to rectify a mistake committed by it in the appellate order. 9. Consequently, as regards first question we have no doubt in holding that when the matter was only being pending for reference, the Tribunal had jurisdiction under Section 254(2) to rectify a mistake committed by it in the appellate order. It is not as if the matter had a heads been referred to the High Court by the Tribunal. Hence, the first question is answered in the affirmative by holding that the Tribunal was justified in law in exercising its powers under Section 254(2) of the Act when the matter was sought to be referred to the High court in the reference. 10. As regards the second question it follows that the Tribunal had jurisdiction to rectify the mistake committed in the order passed in ITA No. 606/1984 on 10th May, 1985 by allowing the application MP No. 19/88 on 21-3-1988. 11. The third question is covered by the judgments of the Supreme Court referred to above, namely, State Bank of Travancore v. CIT 158 ITR 102 and Kerala Financial Corp. v. CIT, AIR 1994 SC 2416 and the question is answered in the affirmative by holding that the Tribunal was right in law. 12. Reference is answered accordingly