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3.8 The thrust of the submissions of the applicant before the Hon'ble I.T.A.T was that the initiation of proceedings was beyond reasonable period in the light of the various judicial pronouncements relied on by the applicant before the Hon'ble LT.A.T and in the light of the same, the order u/s.201(lA) needs to be quashed.

3.9 The applicant humbly submits that the Hon'ble ITAT omitted to deal with the submissions of the applicant and adjudicate upon the ground raised by the applicant in this regard. The applicant submits that this constitutes mistake apparent from record. The applicant prays that the Hon'ble ITAT may kindly recall the order and rectify the mistake apparent from record".

6. The learned DR, however, submitted that there was no mistake apparent from record which was rectifiable u/s 254(2) of the Act.

7. Having regard to the rival contentions and the material on record, respectfully following the above decisions, we agree that there is a mistake apparent from record and needs rectification by dealing with the case law relied upon by the MA Nos 37 and 49 of 2018 Ushodaya Enterprises P Ltd Hyderabad.

assessee. Since considerable time has passed after hearing of the appeals, we are of the opinion that both the parties should be given sufficient opportunity of hearing. Therefore, we deem it fit and proper to recall the order of the Tribunal in ITA No. 546 /Hyd/2017 dated 29.11.2017 for rehearing of the parties on the decisions relied upon by the learned Counsel for the assessee. The appeals are thus directed to be fixed for hearing in due course after notice to the parties.

5.10 The applicant also relied on the decision of the Hon'ble Supreme Court in the case of C.I.T vs Jai Laxmi Rice Mills, Ambala City 379 ITR 521 SC. (Paper book pages 60 to 62) In the said case, the Hon'ble Supreme Court held that where no satisfaction was recorded for initiation of penalty proceedings, u/s.271E of the Act, impugned penalty order passed under the said section deserved to be quashed.

5.11 The thrust of the submissions of the applicant before the Hon'ble ITAT was that the initiation of proceedings u/s.271C was beyond reasonable period in the light of the various judicial pronouncements relied on by the applicant before the Hon'ble ITAT and in the light of the same, the order u/s.271C needs to be quashed. The applicant humbly submits that the finding of the Hon'ble ITAT that the said cases are distinguishable on facts, without stating how they are distinguishable, constitutes mistake apparent from record. The applicant prays that the Hon'ble ITA.T may kindly recall the order and rectify the mistake apparent from record.

Hyderabad 18-04-2018"

10. The learned Counsel for the assessee reiterated the submissions made in the application, while the learned DR submitted that there was no mistake apparent from record from MA Nos 37 and 49 of 2018 Ushodaya Enterprises P Ltd Hyderabad.

the order of the Tribunal which needs any rectification. He further submitted that the non-consideration, if any, of the arguments of the assessee is not a mistake apparent from record 11 Having regard to the rival contentions and the material on record, we find that the first alleged mistake pointed out by the assessee is the finding of the Tribunal in Para 13 of its order. We have gone through the relevant paragraphs of the orders of the ITAT in ITA No.26/Hyd/2011, dated 22.10.2014 in the assessee's own case for the A.Y 2008-09, wherein the issue of payment of non-compete fee was considered. We find that the assessee had claimed it to be an intangible asset and depreciation thereon or to allow it as deferred revenue expenditure and the AO had rejected the assessee's claim mainly on the ground that genuineness of the payment is not proved and that non-compete fee is not an intangible asset and therefore, depreciation thereon is not allowable. It was in these circumstances that the Tribunal had remitted the issue to the file of the AO for deciding afresh and also to decide the allowability of depreciation claimed on such non- compete fee. However, in the order of the Tribunal against the penalty u/s 271C for the A.Y 2008-09, it has been held that the contention of the assessee that the non-compete fee is the business expenditure of the assessee, has been upheld. This finding is thus an erroneous recording of facts and therefore, there is a mistake apparent from record. Therefore, we deem it necessary to modify Para 13 as under: