S. 254(1) : Appellate Tribunal-Duties-Housing project- Tribunal cannot differ from earlier order of Tribunal in assessee’s own case and follow the order of Tribunal in another assessee-The matter has to be referred to larger Bench in case the Tribunal desires to differ from earlier order of the Tribunal-The Tribunal should have considered the order of the High court which was placed on record through rectification application-Order of Tribunal is set aside. [S. 80IB(10) , 254(2), 260A, Art. 226]
The original assessment of the appellant was completed u/s 143(3) of the Act wherein the deduction u/s. 80IB(10) was allowed . For the Assessment year 2009-10 the Assessing Officer disallowed the claim on the ground that the approval was granted on 7 -10-2002 hence the Assessee is not eligible for deduction u/s. 80IB(10) of the Act. CIT(A) allowed the claim which was affirmed by the Tribunal and appeal of the revenue was dismissed by the High Court . While the deciding the appeal for the Assessment year 2007 -08 the CIT (A)) following the order for the Assessment year 2009 -10 decided the issue on merit as well as on reopening of assessment in favour of the assessee. Revenue filed an appeal before the Tribunal. Tribunal without following the order of the Tribunal for the Assessment year 2009-10 followed the order of the Tribunal in the case of Bhavya Construction v. ACIT (2017) 77 taxmann.com 66 (Mum.)(Trib.) and allowed the appeal of the revenue. The Assessee filed Miscellaneous petition which was dismissed. The assessee filed an appeal as well as writ before the High Court. Allowing the petition the Court held that the Tribunal cannot differ from earlier order of Tribunal in assessee’s own case and follow order of Tribunal in another assessee. In case the Tribunal desires to differ from earlier order the matter has to be referred to larger Bench. The Court also held that the Tribunal should have considered the Order of the High court which was placed on record through rectification application. The order of the Tribunal was quashed and set aside with the direction that the Tribunal should decide the appeal afresh on its own merits in the light of observations made in the order. (ITA No. 127 of 2021, WP No. 1217 of 2020 dt. 7-6-2022 )(AY. 2007 -08)
Omega Investments and Properties Ltd. v. CIT (Bom)(HC) www.itatonline.org

(Coram : Hon’ble Justice Shri Nitin Jamdar and Hon’ble Justice Shri N.R. Borkar)