TaxTMI 
TaxTMI 
2017 (11) TMI 1836
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....ing the principle laid down in the decision rendered by the Hon'ble Supreme Court in the case of CIT v. Woodward Governer India (P.) Ltd. [2009] 312 ITR 354/179 Taxman 326. It is further submitted that the said judgment allows the realized and unrealized Exchange Loss on Mercantile basis, while upholding the AS 11. However the Hon'ble Bench has made a mistake in interpreting that the said judgment covers only realized loss ignoring the mercantile method of accounting and AS 11. 4. On the other hand the Ld. DR appearing on behalf of the revenue submitted that the present Misc. Application filed by the assessee is misconceived and since there is no error apparent in the record, therefore the present application filed by the assessee is not maintainable. It was further submitted that the Hon'ble Tribunal had upheld the order of CIT (A) and the CIT (A) had passed well reasoned order in the light of decision of Supreme Court. 5. We have heard the Counsels for both the parties on this application and also perused the records and after verifying the records as well as the order dated 14.12.16 passed in ITA No. 1998/M/15 for assessment year 2009-10, we have noticed that the a....
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....on is not in respect of forward contracts and it is in respect of current assets/ outstanding amounts. The AO has however, stated that out of the total loss of Rs. 2,38,21,533/ - only an amount of Rs. 84,86,181/- which is realized loss is allowable whereas the remaining amount of Rs. l ,53,35,352 /- is national loss because it is a contingent liability as the same is not crystallized during the year under consideration. In response to the remand report of the AO the appellant has submitted that the figures of unrealized and realized loss mentioned in the remand report of the Assessing Officer are not factually correct. The realized loss is Rs.l,88,92,811/- as against Rs. 84,86,181/- mentioned by the AO. Similarly, the unrealized loss is only Rs. 49,28,721/- as against Rs.l,53,35,352/- mentioned by the AO. The appellant has also filed a detailed chart giving break-up of all the realized as well as unrealized loss on various transactions. After considering the rival submissions, it is held that in the light of the decision of Hon'b1e Supreme Court in the case of M s Woodward Governor Indi....
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.... loss mentioned in the remand report and after considering the decisions of the Hon'b1e Supreme Court in the case of M/s Woodward Governor India P. Ltd. 312 ITR 254, held that the foreign exchange loss on trading transactions have to be allowed as business loss. Therefore, while considering the facts and circumstances, the Ld. CIT (A) has directed the Assessing Officer to allow the loss on realized transactions of foreign exchange as business loss. As regards the quantification of the realized loss, the AO was again directed to recalculate the total amounts of realized loss by verifying the contention of the appellant that the same is Rs. l,88,92,811/-. The Ld. CIT (A) has concurred to the effect that the contentions regarding the claim of unrealized loss as it is a contingent liability because it is not ascertainable as to what exchange rate the transactions of foreign exchange will be realized. The Ld. CIT (A) has rightly held that such loss is in the nature of mark to market basis which deserves to be disallowed and can only be allowed at the time of actual realization of such loss. We found that the findings recorded by Ld. CIT (A) is based on the facts and circumstances ....
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.... mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivable be two opinions. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgement. The Tribunal cannot, in the exercise of its power of Sri Moosa Abu Khaled rectification, look into some other circumstances which would support or not support its conclusion." 9. The DR also relied on case title Dharamchand Surana v. ITO [1997] 61 ITD 115 (Mad.) (TM), Homi Mehta & Sons (P.) Ltd. v. Dy. CIT [1997] 63 ITD 15 (Mum.). 10. We have heard both the parties and perused the material placed on record. It is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extend to re-hearing of the case on merit. It is held in the case of CIT v. Pearl Woollen Mills [2011] 330 ITR 164/[2010] 191 Taxman 286 (Punj. & Har.) "Held, that the Tribunal could not read judicate the matter under section....
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....ecall the order and pass a fresh decision. That would amount to review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake under s. 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly. 13. In the case of CIT v. Hindustan Coca Cola Beverages (P.) Ltd. [2007] 293 ITR 163/159 Taxman 122 (Delhi), their Lordships while considering the powers of the Tribunal under s. 254(2) of the IT Act, 1961 observed as Under Section 254(2) of the IT Act, 1961, the Tribunal has the power to rectify mistakes in its order. However, it is plain that the power to rectify a mistake is not equivalent to a power to review or recall the order sought to be rectified.Rectification is a species of the larger concept of review. Although it is possible that the pre-requisite for exercise of either power may be similar (a mistake apparent from the record), by its very nature the power to rectify a mistake cannot result in the recall and review of the order sought to be rectified." 14. Thus the scope and ambit of application....
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....he case of CIT v. Karam Chand Thapar & Bros. (P.) Ltd. [1989] 176 ITR 535/43 Taxman 45 wherein it was held that the decision of the Tribunal has not to be scrutinized sentence by sentence merely to find out whether all facts have been set out in detail by the Tribunal or whether some incidental fact which appears on the record has not been noticed by the Tribunal in its judgment. If the court, on a fair reading of the judgment of the Tribunal, finds that it has taken into account all relevant material and has not taken into account any irrelevant material in basing its conclusions, the decision of the Tribunal is not liable to be interfered with, unless, of course, the conclusions arrived at by the Tribunal are perverse. It is not necessary for the Tribunal to state in its judgment specifically or in express words that it has taken into account the cumulative effect of the circumstances or has considered the totality of the facts, as if that were a magic formula; if the judgment of the Tribunal shows that it has, in fact, done so, there is no reason to interfere with the decision of the Tribunal. 16. Now coming to the facts of the present case, the Ld. CIT (A) after considering th....