TaxTMI 
TaxTMI 
2015 (9) TMI 1179
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....able". 2. When these rectification petitions were taken up for hearing, ld. Representatives fairly agreed that the material facts and circumstances with regard to these rectification petitions are the same as in the case of F.C. Sondhi & Company (Indi) Pvt. Ltd. vs. DCIT in M.A. No.75/Asr/2014 and, therefore, whatever we decide in the said rectification petition will follow mutatis mutandis in these cases as well. 3. Learned representatives for the parties are the same as in that case and common arguments have been advanced by them for all these rectification petitions. 4. Vide our order of even date we have upheld the plea of the assessee and accordingly recalled the order in the case of F.C. Sondhi & Company (India) Pvt. Ltd. While doing so, we have, inter, alia observed as under "9. As for the scope of our powers under section 254(2), we may refer to the following observations made, after taking into account a full bench decision of Hon'ble jurisdictional High Court, by a coordinate bench of this Tribunal in the case of Plaza Investments Pvt Ltd Vs Income Tax Officer [(2006) 108 ITD 239 (Bom)]:- .............while adjudicating upon this rectification petitio....
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....unreasonable to suggest that only because this mistake is committed after application of mind on a situation, this is not a mistake apparent from record. It cannot be termed as an error of judgment, but, in our humble understanding, it has to be termed as a mistake apparent from record resulting in a vitiated judgment. The difference between an error of judgment vis-à-vis an error apparent from record leading to an erroneous judgment may be thin but is too subtle to be ignored by a judicial body. The question of error of judgment can only arise when two views are possible and one of the views is adopted. That is not the case before us. It is a simple case of omission to take note of the context in which Hon'ble Supreme Court made certain observations and then interpreting those observations as complete exposition of law on that subject. Hon'ble Supreme Court itself, in the case of CIT vs. Sun Engineering Works (P) Ltd. (1992) 107 CTR (SC) 209 (1992) 198 ITR 297 (SC), has observed that, "it is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration, and to treat it to be ....
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....red by Section 10(10D) therefore is that it should be a life insurance policy on the life of an eligible person. 12. The concept of term policy, pure life policy and IRDA guidelines find no mention in the statutory provisions. Even if these concepts ought to be incorporated in this statutory provision to make it more meaningful and workable, it cannot be open to any judicial forum to supply these omissions. Relying upon Hon'ble Supreme Court's judgment in the case of Tarulata Shyam Vs CIT [(1977) 108 ITR 245 (SC)], a coordinate bench of this Tribunal, in the case of Tata Tea Limited Vs JCIT [(2003) 87 ITD 351 (Cal)], has explained this principle as follows: 8. Casus omissus, which broadly refers to the principle that a matter which has not been provided in the statute but should have been there, cannot be supplied by us, as, to do so will be clearly beyond the call and scope of our duty which is only to interpret the law as it exists. Hon'ble Supreme Court, in the case of Smt. Tarulata Shyam vs. CIT 1977 CTR (SC) 275 (1977) 108 ITR 345 (SC) at p 356 has observed "We have given anxious thought to the persuasive arguments..... (which) if accepted, will certainly ....
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....ame- as in this case, in our considered view, is a mistake apparent on record which should be rectified under section 254(2) of the Act. 14. As we have noted earlier in this order, the Tribunal has, at one place, observed that, "As per definition of "Keyman Insurance Policy", a person purchasing life insurance can only do so to the extent of his insurable interest in the assured" but then, in our considered view, this observation is clearly a mistake apparent on record. The Explanation below Section 10(10D), which is the only relevant factor for deciding as to what is "keyman insurance policy", has no mention about this condition. Apparently, this expression has been taken from the IRDA circular but then there is no finding on record to hold that one can refer to these circulars to find out the connotations of expression 'keyman insurance policy' for the purposes of the Income Tax Act. 15. Going by the interpretation that the Tribunal has given, only term insurance policies, which are explained as pure life insurance policies, are eligible for deduction as contribution for keyman insurance policies but then such an interpretation may perhaps be wrong because even after the IR....
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....7): Refers to Transfer of Property Act, 1882 Since IRDA 1999 has not been referred to in defining Keyman Policy or Life Insurance, its circulars cannot be relied upon for income tax purposes (Page 3 of written submission) 17. These submissions were, however, not dealt with at all while passing the order which is subjected to this rectification petition. 18. In view of the above discussions, as also bearing in mind entirety of the case, we are of the considered view that the order passed by the Tribunal did suffer from mistake apparent from record inasmuch as, without adjudicating upon the specific submissions of the assesse, the Tribunal proceeded to decide the matter on the basis of the IRDA circulars. The Tribunal has held that these circulars are clarificatory and, therefore, retrospective in effect. The alternate contention was picked up for disposal without dealing with the core contention. It is a wholly academic issue as to whether these circulars are prospective or retrospective. That aspect of the matter could be relevant only in case the circulars are held to be binding at all. 19. We, therefore, recall the order dated 21st April 2014 for the purposes....