Judgment : R. Sudhakar, J. 1. The matter is taken up for hearing pursuant to the order of the Supreme Court in Sree Ayyanar Spinning and Weaving Mills Ltd. v. Commissioner of Income-tax, [2008] 171 Taxman 498 (SC), restoring this tax case appeal to file. 2.1. The brief facts of the case are as under: The assessee is engaged in the business of manufacture of cotton and man-made fibre yarn. For the assessment year 1989-90, the assessment was completed on 27.2.1992 determining the taxable total income for 21 months ending 31.3.1989 at Rs.45,92,240/-based on the book profits under Section 115J of the Income Tax Act, 1961 (for brevity, “the Act”). The main reason for determining the said amount was that the assessee changed its method of claiming depreciation from Straight Line Method to Written Down Value method. 2.2. On appeal by the assessee, the Commissioner of Income Tax (Appeals), by order dated 28.8.1992 made in I.T.A.No.60 of 1992-93, held against the assessee. However, the Tribunal set aside the orders passed by the authorities below and remitted the matter to the Assessing Officer for reconsideration vide order dated 22.3.1993 made in I.T.No.2531/Mds/92. 2.3. Thereafter, the Assessing Officer considered the issue afresh and added back the depreciation relating to the earlier period while calculating the book profits for the purpose of Section 115J of the Act. In other words, the Assessing Officer calculated the income under Section 115J of the Act at the same figure as in the original assessment order. 2.4. In the further appeal preferred by the assessee, the Commissioner of Income Tax (Appeals) confirmed the assessment order holding that disallowing of depreciation while computing income under Section 115J of the Act was justified. 2.5. Challenging the said order, the assessee preferred an appeal before the Tribunal, which, by order dated 9.12.1996 made in I.T.A.No.719/Mds/1994, dismissed the appeal upholding the order of the Commissioner of Income Tax (Appeals) on computation of income under Section 115J of the Act. The Tribunal dismissed the appeal on the ground that the profit and loss account of the assessee did not reflect correct picture for the assessment year 1989-1990. 2.6. The Tribunal dismissed the appeal on the ground that the profit and loss account of the assessee did not reflect correct picture for the assessment year 1989-1990. 2.6. Thereafter, on 2.8.2000, the assessee filed a miscellaneous petition in M.P.No.40 of 2000 praying to recall and rectify the order by mainly relying upon the decision of the Supreme Court in Surana Steels Pvt. Ltd. v. Deputy Commissioner of Income Tax, [1999] 237 ITR 777. The Tribunal, after hearing the matter at length and relying upon the decision of the Supreme Court in Surana Steels Pvt. Ltd. case, referred supra, and the Board Circular No.68, dated 17.11.1971 passed the following order: “Applying the ratio decidendi out of the said decision of the Tribunal in 81 ITD 282 to the facts of the present case we are of the opinion that there had been apparent mistake in the order of the Tribunal in view of the subsequent decision of the Supreme Court in the case of Surana Steels Ltd. and also in the case of Apollo Tyres Ltd. and hence the original order in the appeal requires to be recalled. For the above reasons, we are inclined to recall the order of the Tribunal dated 9.12.1996 in I.T.A.No.719(Mds)/1994, and direct the Registry to post the case before the regular Bench for deciding the appeal.” To arrive at the above conclusion, the Tribunal also relied upon the decision of the Supreme Court in Apollo Tyres Ltd. v. Commissioner of Income Tax, [2002] 255 ITR 273, which decision was rendered by the Supreme Court after the miscellaneous petition was filed by the assessee on 2.8.2000. According to the department, the Tribunal was not justified in considering the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, as on the date when the miscellaneous petition was filed, namely on 2.8.2000, such decision was not rendered by the Supreme Court and, therefore, the order passed by the Tribunal is liable to be set aside. 2.7. On this premise, the matter was brought on appeal before this Court on two questions of law as under: “1. Whether in the facts and circumstances of the case, the Tribunal was right in rectifying its order under section 254 of the Income-tax Act, based on a judgment of the Supreme Court rendered six years after the date of the order rectified ? 2. Whether in the facts and circumstances of the case, the Tribunal was right in rectifying its order under section 254 of the Income-tax Act, based on a judgment of the Supreme Court rendered six years after the date of the order rectified ? 2. Whether in the facts and circumstances of the case, the Tribunal has the power or jurisdiction to rectify its order beyond the time limit of four years specified under section 254(2) ?” and this Court, by order dated 11.12.2006, allowed the appeal filed by the Revenue and held as under: “20. In fine, without going into the merits of the case, we hold that the order passed by the Appellate Tribunal is barred by limitation. Accordingly, the order impugned and the consequential order dated June 12, 2003 are set aside as it is settled that when initiation of proceedings under a statute lacks jurisdiction, the final or consequential order is also liable to be struck down. The questions are answered in favour of the Revenue and against the assessee. The appeal stands allowed. No costs.” 2.8. The assessee filed appeal to the Supreme Court and the Supreme restored the matter to the file of this Court holding as under: “9. For the aforesated reasons, we set aside the impugned judgment of the High Court and restore Tax Case (Appeal) No. 2 of 2004 on the file of the Madras High Court for fresh decision on the merits of the matter as indicated hereinabove. All contentions on the merits are expressly kept open. We express no opinion on the merits of the case whether rectification application was at all maintainable or not and whether the judgment in the case of Apollo Tyres Ltd. [2002] 255 ITR 273 was or was not applicable to the facts of this case. That question will have to be gone into by the High Court in the above Tax Case (Appeal) No.2 of 2004.” 3. Heard the learned counsel on either side and perused the orders passed by the Supreme Court, the Tribunal and the authorities below. 4. The assessee took the matter on appeal before the Supreme Court. The Supreme Court was of the view that the miscellaneous petition filed by the assessee for rectification was well within the time limit prescribed under Section 254(2) of the Act. 4. The assessee took the matter on appeal before the Supreme Court. The Supreme Court was of the view that the miscellaneous petition filed by the assessee for rectification was well within the time limit prescribed under Section 254(2) of the Act. However, the Supreme Court observed that it was the Tribunal which took its own time to dispose of the miscellaneous petition and, therefore, this Court erred in holding that the miscellaneous petition could not have been entertained by the Tribunal beyond four years. 5. In view of the above finding rendered by the Supreme Court, the second question of law raised before this Court does not survive for our consideration. 6. Now, let us take up the first question of law, whether the Tribunal was justified in relying upon the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, for the purpose of passing the rectification order dated 31.1.2003, when such decision was rendered six years after the date of the order. 7. We find from the order passed by the Tribunal that the Tribunal was guided not only by the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, which was rendered subsequently at the time of disposal of the miscellaneous petition seeking rectification, but also followed the decision in Surana Steels Pvt. Ltd. case, referred supra, and the Board Circular No.68, dated 17.11.1971. The relevant portion of the said order passed by the Tribunal is extracted hereunder for better clarity: “5.4. Further the decision relied upon by the Commissioner (Appeals) in the case of V.V.Trans Investments (P) Ltd., 207 ITR 509 (A.P.) has been reversed by the Apex Court in the decision reported in 237 ITR 777 (Surana Steels, etc.). On this consideration also the assessee's stand is correct that a mistake had crept in to the order of the Tribunal in I.T.A.No.719(Mds)/1994. 5.5. Now we have to consider whether a subsequent decision of the Supreme Court rendered after the Tribunal had passed the order shall give rise to a mistake rectifiable under Section 254 (2) of the Act. In this connection the assessee had relied upon the circular of the Central Board of Direct Taxes being Circular No.68, dated 17th November, 1971 (83 ITR St.6). He also relied upon the decision of the Nagpur Bench of the Tribunal in the case of Bhilai Engg. Corpn. In this connection the assessee had relied upon the circular of the Central Board of Direct Taxes being Circular No.68, dated 17th November, 1971 (83 ITR St.6). He also relied upon the decision of the Nagpur Bench of the Tribunal in the case of Bhilai Engg. Corpn. Ltd. vs. DCIT, 81 ITR 282. In that case the question was allowability of depreciation on immovable property, the sale deed of which was not registered till the closing of the year.” 8. We are, therefore, of the firm view that the first question of law raised by the Revenue is based on a misconception of fact, as the Tribunal has not only relied upon the decision of the Supreme Court in Apollo Tyres Ltd. case, referred supra, but also relied on the decision in Surana Steels Pvt. Ltd. case, referred supra, and the Board Circular No.68, dated 17.11.1971, which were very much available before the Tribunal at the time of passing the rectification order. The said fact is also not disputed by the Revenue. 9. In such view of the matter, we answer the first substantial question of law against the Revenue. In the result, this appeal is disposed of accordingly. No costs.