9911796707
TMI Blog2007 (5) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 1998-99) vide which the Tribunal upheld, the disallowance of loss of Rs. 38,30,000 to the assessee and order dated June 15, 2005, passed under section 254(2) of the Act in Misc. Application No. 133/Del/2005 (the assessment year 1998-99) vide which the rectification application of the assessee was dismissed. 2. The assessment order for the year in question was passed on January 10, 2001, vide which foreign exchange fluctuation loss amounting to Rs. 38,30,000 was disallowed by the Assessing Officer. 3. The assessee filed an appeal before the Commissioner of Income-tax (Appeals) who upheld the disallowance on the ground that the exchange fluctuation related to long term loan, and it cannot be allowed as revenue expenditure. 4. Agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to prove the user thereof, because once in the year of utilisation of loan, the Department has accepted the loan to be utilised on revenue account, it is not open in a subsequent year to allege that the exchange fluctuation on the said loan is not in the nature of revenue loss. Further, the Tribunal has admitted in its order that there may be an error of judgment while passing the original order but still it failed to rectify the mistake under section 254(2) of the Act. 8. Ex facie, the present appeal challenging two different orders passed by the Tribunal dated April 22, 2004, and June 15, 2005, in one single appeal is not maintainable. 9. As far as order dated April 22, 2004, is concerned, the same was challenged by the assessee by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue the whole matter, which is beyond the scope of this section. 12. In a decision of this court in Ms. Deeksha Suri v. ITAT [1998] 232 ITR 395 while discussing the scope of section 254(2) of the Act, it has been observed that (page 415) : "The foundation for exercising the jurisdiction is "with a view to rectify any mistake apparent on the record" and the object is achieved by "amending any order passed by it". The power so conferred does not contemplate a rehearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h persuaded the Commissioner of Income-tax (Appeals) to accept the claim. For the year under appeal, no details have been filed to show utilisation of the loan towards working capital. Each year is a separate and independent year and evidence must be produced for each year separately and independently regarding utilisation of the loan." 14. There is nothing on record to show that the assessee had produced necessary documents before the Income-tax authorities for the assessment year in question. 15. Further, the Tribunal while dismissing the application for rectification, vide impugned order has held that : "Our attention was invited to para 13 of the order in which the Tribunal has observed that it was for the assessee, which possesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the matter. Given the findings of the Tribunal in paras 13 and 14 of its order, the present application cannot be accepted. It may perhaps be that the evidence produced in the earlier years was relevant for the purpose of deciding the merits of the asses see's claim, but when the Departmental Authorities have held that for the year under appeal there was no evidence brought on record to show the utilisation of the loan, and where such a finding has been upheld by the Tribunal, the provisions of section 254(2) of the Act cannot be invoked. We do appreciate the assessee's anxiety and it may even be open to the assessee to argue that the evidence adduced by the assessee for the earlier years would be sufficient to discharge the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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