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In the case of Sasidhara Shenoy & Bros. V. Dy. CIT (108TAX116)(Ker.) the assessee owning a theatre claimed depreciation on building at the rates applicable to plant. The AO and the Commissioner (Appeals) rejected the claim. The ITAT, however, held that the theatre building is plant. The reference was however answered in favour of the revenue. Subsequently the full bench of the Kerala High Court in the context of a hotel in the case of CIT v. Hotel Luciya (231ITR492/100TAX438) overruled the earlier decision of the Division Bench and held that a theatre will also come under the category of plant. Upon such decision the assessee moved a miscellaneous application before the ITAT for rectification of the order passed u/s 260(1). To this the ITAT held that there is no mistake apparent from record requiring rectification since the full bench decision rendered by the High Court on the identical issue is in the context of another assessee. Further, in a writ petition filed for a writ of certiorari the High Court held that once a reference application has been decided, the Tribunal has no other go, but to decide that question in accordance with the judgement of the High Court. The assessee cannot say that merely because the Full Bench has taken another view, the Tribunal should automatically erase the decision in reference and in its place substitute the judgement of the Full Bench. It further held that once an answer is given to a reference, the disposal of the appeal would depend upon that reference. Further, under the provision of section 260, the High Court judgement as a whole is binding between the parties in a particular case. The court drawn reference to the privy council ruling in the case of CIT v. Tehri- Garhwal State (2ITR1) (PC) in the context of a judgement that the only course possible against wrong construction of the Act is filing of an appeal and there is no other procedure by which it can be corrected.

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