A.K. Garodia, A.M.

1. This M.A. is filed by the assessee and it has been submitted in the M.A. by ate assessee that the assessee has cited various tribunal decisions in assessees own case in the earlier years as per which the issue in dispute was decided by the tribunal in favour of the Assessee but in the impugned order, the Tribunal has not followed these orders and given finding which is contrary to the ratio laid down in the orders in earlier years. Reliance has been placed on the judgment of Honble Apex Court rendered in the case of Honda Siel Power Products Ltd. v. CIT as reported in 295 ITR 466 in support of this contention that non consideration of an order of a Coordinate Bench is a mistake apparent from record. Reliance was also placed on the judgment of Honble Gujarat High Court rendered in the case of Sayaji Iron and Engg. Co.v. CIT as reported in : 253 ITR 749 and it is submitted that non consideration of a binding decision of a jurisdictional High Court itself is a mistake apparent from the record and therefore, the same should be rectified.

2. In the course of hearing before us, the Ld. A.R. of the assessee reiterated the same contentions which are raised by the assessee in the M.A. He pointed out that in para 5 of the impugned tribunal order, it is noted by the Tribunal that reliance was placed by the Ld. counsel for the assessee on the various decisions which are placed on record.

3. As against this, it is submitted by the Ld. D.R. that here is no apparent mistake in the tribunal order because the Tribunal has followed the decision of Special Bench of the Tribunal rendered in the case of International Research Park Laboratories Ltd., v. ACIT as reported in 212 ITR 01 (AT) and also the judgment of Honble Kerala High Court rendered in the case of CIT v. Jose Thomas : 253 ITR 553.

4. We have considered the rival submissions, perused the material on record have gone through the judgments cited by the Ld. A.R. of the assessee. As per the judgement of Honble Apex Court rendered in the case of Honda Siel Power Products Ltd. (supra), it was held by the Honble Apex Court that "rule of precedent" is an important aspect of legal certainty in the rule of law and that principle is not obliterated by Section 254(2) of the Income tax Act, 1961. It was also held that when prejudice results from an order attributable to the Tribunals mistake, error or omission, then it is the duty of the Tribunal to set it right. But in that case, the facts are that before the Tribunal, reliance was placed by the assessee on the order of a Coordinate bench of the Tribunal but the same was not considered by the Tribunal. Under these facts, the order was rectified by the Tribunal in that case Under Section 254(2) and such rectification order passed by the Tribunal in that case was set aside by the Honble High Court but on further appeal, Honble Apex Court set aside the judgment of Honble High Court and restored the Tribunal order. In the present case, the reliance was placed by the assessee on the tribunal decision in assessees own case for the assessment year 1997-98, 1998-99 in I.T.A. No. 1165 and 1166/Ahd/2001 dated 17.11.2006 and this fact is noted by the Tribunal in the impugned order in para 5. The issue was decided by the Tribunal in para 6 of the Tribunal order on the basis of decision of Special bench of the Tribunal rendered in the case of International Research Park Laboratories Ltd. v. ACIT (supra) and also on the basis of a judgment of Honble Kerala High Court rendered in the case of CIT v. Jose Thomas (supra). In para 7 of the impugned Tribunal order, the Tribunal has duly considered these decisions of the Tribunal in assessees own case for the assessment years 1997-98 and 1998-99 and it has been stated that this Tribunal order is on the basis of another tribunal order in assessees own case for the assessment year 1999-2000 which in turn followed the decision of the tribunal in the case of Madhusudan Industries Ltd. in I.T.A. No. 2136/Ahd.1997 and 1925/Ahd/1997 dated 06.07.2005 but in none of the cases, the decision of Special bench of the Tribunal rendered in the case of International Research Park Laboratories (supra) has been referred to and taken note of. On this basis, the Tribunal has disregarded earlier Tribunal decision in assessees own case and followed the decision of Special bench of the Tribunal and the judgment of Honble Kerala High Court rendered in the case of CIT v. Jose Thomas (supra). This goes to show that the Tribunal had not ignored the judgment cited before it and had given reasons for not following the same. When a decision of division Bench of the Tribunal is fitted against the decision of Division bench of the Tribunal and a decision of Honble High Court, there is no mistake in following the decision of Special bench of the Tribunal and decision of Honble High Court in preference to the decision of a Division Bench of the Tribunal. Under these facts, the judgment of Honble Apex Court rendered in the case of Honda Siel Power Products (supra) is of no help to the assessee in the present case. In that case, the tribunal decision cited before the tribunal was omitted to be considered by the tribunal whereas in the present case, the facts are different because the decision cited before the tribunal in the present case was duly considered and it was decided that the same is not required to be followed because the decision of Special bench of the Tribunal was not cited and considered in those decisions of Coordinate bench of the Tribunal and the tribunal in the present case, has chosen to follow the decision of Special bench of the Tribunal and the decision of Honble Kerala High Court in preference to decision of a Coordinate bench of the Tribunal.

5. The 2nd decision cited by the Ld. A.R. is the decision of Honble Jurisdictional High Court rendered in the case of Sayaji Iron & Engineering Company v. CIT (supra). In that case, it is held by the Honble Jurisdictional High Court that no tribunal in fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another bench of the same Tribunal on the same facts. Hence, this is very important that if the facts are the same, Coordinate bench of the Tribunal cannot come to a different conclusion contrary to the one reached earlier by another Coordinate bench of the Tribunal of that very Tribunal. But we have seen in above para that in the present case, the facts are not the same. The earlier tribunal decisions were rendered without considering the decision of Special bench of the Tribunal rendered in the case of International Research Park Laboratories (supra), which was rendered on 25.07.1994 and although the Tribunal decisions in the assessees own case in earlier years were rendered much after this i.e. on 17.11.2006 for the assessment year 1997-98 and 1998-99 and dated 20.10.2006 in assessment year 1999-2000 but this decision of Special bench of the Tribunal was neither brought to the notice of Coordinate bench of the Tribunal in earlier years, nor the same was referred to or considered by the tribunal in earlier years. Whereas, in the present year, the Tribunal had considered this earlier decision of Special bench of the Tribunal and has also considered the judgment of Honble Kerala High Court. Under these facts, we are of the considered opinion that it cannot be said that the Tribunal has taken a different view in the present case on the same facts and, therefore, this judgement of Honble Gujarat High Court is also of no help to the assessee in the present case because we have seen that in the present case, the facts are different.

6. In view of above discussion, we are of the considered opinion that there is no apparent mistake in the Tribunal order which can be rectified Under Section 254(2) of the Act because the Tribunal has decided this issue by following a decision of Special bench of the Tribunal and judgement of Honble Kerala High Court.

7. In the result, miscellaneous application of the assessee stands dismissed.

8. Order pronounced in the open court on 21st Oct., 2011.