TMI Blog2017 (11) TMI 1836X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal of the assessee and uphold the order of CIT (A), therefore there was no mistake in interpreting the judgment of Hon'ble Supreme Court. No glaring, obvious or patent mistake has been pointed out by the assessee which is apparent from the record, therefore we are inclined to dismiss the MA filed by the assessee. - M.A. NO. 231 (MUM.) OF 2017 IT Appeal No. 1998 (Mum.) Of 2015 [Assessment Year 2009-10] - - - Dated:- 15-11-2017 - Rajendra And Sandeep Gosain, JJ. Haridas Bhat for the Appellant. Ms. Hemalatha for the Respondent. ORDER Sandeep Gosain, The present Miscellaneous Application has been filed by the assessee for recalling the order dated 14.12.16 passed in ITA No. 1998/Mum/15 for assessment year 2009-10 and for disposing of the appeal on merits. 2. The brief facts of the case are that assessee had filed the appeal against the order of CIT (A)-10, dated 02.01.15 for AY 2009-10 vide ITA N. 1998/Mum/2015 and the said ITA was disposed of on merits vide order dated 14.12.16 after hearing the counsels for both the parties. Now, filing through this Misc. Application, the assessee seeks for rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detailed order. The operative para of CIT (A) is reproduced below:- 5.1. I have carefully considered the facts and circumstances of the case, statement of facts, relevant assessment order, written submission, relied upon case laws and the arguments made by the LAR before the undersigned. The only issue of dispute in the instant case is the claim of loss on foreign exchange transactions of the appellant. In the assessment order the AO has treated the loss as mark to market loss on forward contracts. On the other hand, it was vehemently contended by the appellant that the AO has wrongly considered the loss in question as loss on forward contract of foreign exchange, whereas the loss under consideration was on the trading transactions of imports. It was also contended by the appellant that a major portion of loss was realized loss, whereas the AO has treated the entire loss as unrealized i.e. on mark to market basis. As the claim of the AO and the appellant were contradictory therefore, vide letter dated 18.10.2013 the AO was directed to re-verify the contention of the appellant regarding the exact nature of the loss in question. Vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on forward contracts. Whereas, the Ld. AR submitted that the AO has wrongly considered the loss in question as loss on forward contract of foreign exchange, the loss under consideration was on the trading transactions of imports. In this respect, we have noticed that during the pendency of the appeal before CIT (A), a remand report was sought by the CIT (A) as the claim of the AO and the assessee were contradictory. The Ld. CIT (A) had considered the remand report dated 25.08.2014 and held that the loss in question suffered by the assessee was not in respect of forward contracts and it is in the nature of current assets/ outstanding amounts. The Ld. CIT (A) has also rightly considered that the Assessing Officer in his assessment order has mentioned that out of the total loss of ₹ 2,38,21,533/ - only an amount of ₹ 84,86,181/- which is realized loss is allowable whereas the remaining amount of Rs. l,53,35,352 /- is notional loss because it is a contingent liability as the same is not crystallized during the year under consideration. The Ld. CIT (A) after considering the rival contentions of the Ld. AR regarding the factual mistakes of the figures of unrealized and reali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT (A) and dismissed the appeal of the assessee. 7. But now the present Misc. Application has been moved by the assessee without mentioning the specific provision under which the present application has been moved. 8. The learned DR submitted that there is no mistake apparent on record which warrants rectification of earlier order of the Tribunal. We have perused case title CIT v. Ramesh Electric and Trading Co. [1993] 203 ITR 497/[1994] 77 Taxman 43 wherein the Bombay High Court held as Under section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, with a view to rectifying any mistake apparent from the record , amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order. The power of rectification under section 254(2) can be exercised only when the mistake which is sought to be rectified is an obvious and patent mist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 254(1) is the effective order so far as the appeal is concerned. Any order passed under s. 254(2) either allowing the amendment or refusing to amend gets merged with the original order passed. The order as amended or remaining un-amended is the effective order for all practical purposes. An order under s. 254(2) does not have existence de hors the order under s. 254(1). Recalling of the order is not permissible under s. 254(2). Recalling of an order automatically necessitates rehearing and re-adjudication of the entire subject-matter of appeal. The dispute no longer remains restricted to any mistake sought to be rectified. Power to recall an order is prescribed in terms of Rule 24 of the ITAT Rules, 1963, and that too only in case where the assessee shows that it had a reasonable cause for being absent at a time when the appeal was taken up and was decided ex-parte. Judged in the above background the order passed by the Tribunal is indefensible. 12. The words used in s. 254(2) are 'shall make such amendment, if the mistake is brought to its notice'. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgement. (f) Sixthly, even if on the basis of a wrong conclusion the Tribunal has not allowed a claim of the party it will not be a ground for moving an application under s. 254(2) of the Act. (g) Lastly, in the garb of an application for rectification under s. 254(2) the assessee cannot be permitted to reopen and reargue the whole matter as the same is beyond the scope of s. 254(2) of the IT Act. 15. Further, it is also pertinent to mention herein the judgement of Gujarat High Court in the case of CIT v. Steel Cast Corpn. [1977] 107 ITR 683 wherein it was held that in the order of appellate authority, the ground might not have been dealt with that point and thereby it means that it was impliedly rejected it. Being so, in view of the above judgement, it is implied that though there was no specific finding in the order of the Tribunal about ex-parte order, it is to be understood that this ground was rejected by the Tribunal so that the Tribunal considered all the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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