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Tata Power Company v. ACIT ( 2020) BCAJ – September – P. 42 ( Mum) (Trib)

S. 254(2): Appellate Tribunal-Rectification of mistake apparent from the record –Non -consideration of jurisdictional High Court , though not cited before the Tribunal at the time of hearing of appeal , constitute a mistake apparent on record – Gain derived form foreign currency bonds – Order recalled [ S. 4 , 28(i) ]

Allowing the miscellaneous petition the Tribunal held that  jurisdictional High Court in  CIT v. Reliance Industries Ltd  [2020] 423 ITR 236 (Bom) (HC ) after taking note of the decision of the supreme Court in CIT v.  Mahindra & Mahindra Ltd  ( 2018) 408 ITR 1 ( SC) and CIT v.  T.V Sundram Iyengar & Sons Ltd   ( 1996) 222 ITR 355 (SC)  has up held the decision of the Tribunal in holding that the gain derived from buyback of foreign currency bonds issued by the assessee cannot be treated as revenue receipts .  Tribunal held that  though it may be the fact that the aforesaid decision was not cited before the Tribunal at the time of hearing of appeal , as held by the Supreme Court in ACIT v.  Saurashtra Kutch Stock Exchange Ltd (2008) 305 ITR 227 (SC) , non consideration of the supreme court judgement or the  jurisdictional High Court  , even rendered post disposal of appeal , would constitute  apparent on the face of the record  . Accordingly the order of the Tribunal dt  21 -5 2019 was recalled and the appeal was restored . ( MA.No 596 / Mum/2019   arising out of ITA  No. 3036 /Mum/ 2009 dt 22- 5-2009 ) ( AY. 2003 -04 )