Applicability of section 40A(3) to "book adjustment"

[murali Krishnamurthy]

The Hon'ble Bench ITAT did not consider the decision of a co-ordinate bench and passed an order. Can such an 
order be recalled as there was a mistake apparent from record? Kindly give considered opinion with relevant case
as soon as possible, since the case is posted for hearing on the coming Friday.

CA Murali 

[probal_shome]

The question whether non-consideration of a co-ordinate bench judgement constitutes a mistake apparant from the record is covered by the judgement of the SC in Honda Siel 295 ITR 466. The Court held:

"Non-consideration of a decision of co-ordinate Bench placed before the Tribunal amounts to mistake apparent from record within the meaning of s. 254(2); Tribunal was therefore justified in exercising its powers under s. 254(2) when it was pointed out that an order of the co-ordinate Bench placed before the Tribunal was not considered by it while passing the original order."

On a side note, it may be noted that an order which does not consider a coordinate bench judgement is "per incuriam" and of no binding judgement. The entire law on this is nicely summed up by the Hyd and Bom benches in the following judgements:

Mangal Dayak Chit Fund 92 ITD 258 (Hyd)
Mehratex India Ltd (2005) 3 SOT 539 (Mumbai)
JKT Fabrics (2005) 4 SOT 84 (Mumbai)

..Hope this helps.

Regards,

Probal.