S.VINODKUMAR DIAMOND P. LTD, V. ADDL CIT RG 5(3),

MA 287/MUM/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2888 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 22-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 01-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Proportionate interest

Judgement Text

INCOME TAX APPELLATE TRIBUNAL ,MUMBAI - E BENCH . . , , BEFORE S/SH.I.P.BANSAL, JUDICIAL MEMB ER & RAJENDRA,ACCOUNTANT MEMBER MA NO.287/MUM/2013 (ARISING OUT OF ITA NO.506/M UM/2013)-ASSESSMENT YEAR 2008-09 S. VINODKUMAR DIAMONDS PVT. LTD. OFFICE NO. BW-3010, BHARAT DIAMOND BOURSE, BANDRA KURLA COMPLEX, BANDRA(EAST),MUMBAI-51 PAN:AAICS5514N VS. ADDL. CIT, RANGE - 5(3), MUMBAI. ( / APPELLANT) ( / RESPONDENT) APPELLANT BY : SHRI MADHUR AGRAWAL RESPONDENT BY : SHRI VIVEK BATRA ! ' / DATE OF HEARING : 16-01-2015 #$%& ! ' / DATE OF PRONOUNCEMENT : 04-03-2015 ' / O R D E R PER RAJENDRA, A.M. : VIDE ITS APPLICATION,DATED 27.07.2013,THE ASSESSEE- COMPANY HAS STATED THAT MISTAKES WERE APPARE - NT IN THE ORDER OF THE TRIBUNAL DATED 03.05.2013 (I TA NO. 506/M/13 -AY 2008-09), THAT SAME WERE TO BE RECTIFIED U/S 254(2) OF THE ACT.IN ITS F OURTEEN PAGE APPLICATION IT RAISED TWO ISSUES. THE ASSESSEE WAS DIRECTED TO FILE CONCISE APPLICATION.A CCORDINGLY,A FRESH APPLICATION WAS FILED BY IT. IT HAS BEEN STATED THAT WHILE DECIDING THE GROUND O F APPEAL NO.1,WITH REGARD TO DISALLOWANCE OF PROPORTIONATE INTEREST EXPENDITURE, THE TRIBUNAL HA D RESTORED BACK THE MATTER TO THE FILE OF THE FIRST APPELLATE AUTHORITY (FAA) FOR RECALCULATING AN AMOU NT OF INTEREST DISALLOWANCE,THAT THE ASSESSEE HAD OWN FUNDS OR INTERNAL ACCRUALS FOR ADVANCING IN TEREST FREE FUNDS,THAT THE JUDGMENT OF RELIANCE UTILITY AND POWER LTD.(313ITR340) WAS NOT CONSIDERE D BY THE TRIBUNAL.IT WAS FURTHER STATED THAT TRIBUNAL HAD DECIDED THE ISSUE OF LOSSES IN FOREIGN CONTRACT CONVERSION AGAINST THE ASSESSEE,THAT THE GROUND WAS RAISED BY THE ASSESSEE WAS ABOUT DIS ALLOWANCE OF MARK TO MARKET LOSSES ON ACCOUNT OF OUTSTANDING FORWARD EXCHANGE CONTRACT,TH AT THE TRIBUNAL HAD NOT DECIDED THE ISSUE.IT WAS FURTHER ARGUED THAT THE ISSUE IN QUESTION WAS C ONSIDERED BY THE HON'BLE APEX COURT WHILE DELIVERING THE JUDGMENT IN THE CASE OF WOODWARD GOV ERNOR INDIA PVT. LTD. (312 ITR 254),THAT NON-CONSIDERATION OF THE JUDGMENT WAS MISTAKABLE FR OM THE RECORD,THAT THE HONBLE BOMBAY HIGH COURT HAS DECIDED THE ISSUE OF FOREIGN EXCHANGE LOS S IN THE MATTER OF BADRIDAS GAURIDA PVT. LTD. (261ITR256)WHILE DECIDING THE ISSUE.ON A QUERY BY T HE BENCH THE AUTHORISED REPRESENTATIVE (AR)ADMITTED THAT THE ORDER OF THE TRIBUNAL HAS ALR EADY BEEN CHALLENGED BEFORE THE HONBLE JURISDICTIONAL HIGH COURT BY THE ASSESSEE. 2. DURING THE COURSE OF HEARING THE AR(AR)OF THE ASSES SEE REITERATED THE SUBMISSIONS MADE IN THE APPLICATION.DEPARTMENTAL REPRESENTATIVE(DR)STATED T HAT THE ASSESSEE WANTED THE TRIBUNAL TO REVIEW ITS ORDER AND IT WAS NOT PERMISSIBLE AS PER THE PROVISIONS OF SECTION 254(2)OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.BEFORE PROCEEDING FURTHER,WE WOULD LIKE TO MENTION CERTAIN PRINCIPLES GOVERNING THE SECTION 254(2).THE SCOPE OF SECTION 254(2) OF THE ACT IS VERY LIMITED AND SPECI FIC.IF A MISTAKE IS SO GLARING THAT ON THE FACE OF IT SAME HAS TO BE AMENDED,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED.THE SECTION IS LIMITED TO MISTAKE APPARENT FROM RECORD LIKE ARITHM ETICAL ERRORS,TYPOGRAPHICAL MISTAKES,NON- ADJUDICATION OF GROUND OF APPEAL OR NON-CONSIDERATI ON OF A JUDGMENT OF HONBLE SUPREME COURT 2 M.A.NO.287/MUM/2013 S. VINODKUMAR DIAMONDS PVT. LTD . OR JURISDICTIONAL HIGH COURT HAVING DIRECT BEARING ON THE CASE.HONBLE DELHI HIGH COURT HAS,IN THE MATTER OF GEOFIN INVESTMENT (P.) LTD.,DESCRIBED THE CONCEPT OF MISTAKE APPARENT FROM RECORD AS UNDER: THE POWER IS CIRCUMSCRIBED AND LIMITED. THERE SHOUL D BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED. THIS IS A MANDATORY PRE-CON DITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLO WANCE MADE ON ACCOUNT OF SHORT-TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS.THE ENTIRE ISSUE WAS EXA MINED ON THE MERITS INCLUDING THE JUDGMENTS RELIED UPON BY THE ASSESSEE. AFTER EXAMINING THE MA TTER IN DETAIL, IT ALLOWED THE APPEAL FILED BY THE REVENUE.RELIANCE AND REFERENCE TO REASONS STATED IN THE DECISION COULD NOT BE REGARDED AS A MISTAKE APPARENT FROM THE RECORD. (348ITR118) . IN THE CASE OF BHAGWATI DEVELOPERS (P.) LTD.(261 IT R 658),HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER : UNDER SECTION 254(2), THE APPELLATE TRIBUNAL IS CL OTHED WITH THE POWER TO AMEND WITH A VIEW TO RECTIF Y ANY MISTAKE APPARENT FROM THE RECORD EITHER ON ITS OWN MOTION OR ON AN APPLICATION BY THE ASSESSEE OR THE ASSESSING OFFICER CONCERNED. THE LAW BY NOW IS WELL -SETTLED. SECTION 254(2) DOES NOT CONFER A POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. A MISTAKE APP ARENT FROM THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH COULD BE ESTABLISHE D BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. FOLLOWING IS THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT HAS IN THE CASE OF RAMESH ELECTRICALS (203ITR497): 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', A MEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN AC CEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER T HE 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 P OWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD,AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY 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 O N THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF I TS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT IT S CONCLUSION. HERE,WE WOULD ALSO LIKE TO REFER TO THE DECISION OF HONBLE DELHI HIGH COURT DELIVERED IN THE MATTER OF SMT. BALJEET JOLLY (250 ITR113),WHEREIN T HE COURT HAS HELD AS UNDER: IN ORDER TO THE POWER TO RECTIFY UNDER SECTION 254 (2) OF THE INCOME-TAX ACT, 1961, IT IS NOT SUFFICIENT IF THERE IS MERELY A MISTAKE IN THE ORDE R SOUGHT TO BE RECTIFIED. THE MISTAKE TO BE RECTIFI ED MUST BE ONE APPARENT FROM THE RECORD. A DECISION ON A DEBATABLE POINT OF LAW OR DISPUTED QUESTION OF FACT IS NOT A MISTAKE APPARENT FROM THE RECORD. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE SO EX FACI E AND IS INCAPABLE OF ARGUMENT OR DEBATE. IN THE ABOVE MENTIONED MATTER,IN THE APPLICATION FI LED UNDER SECTION 254(2) OF THE ACT,THE ASSESSEE CONTENDED THAT THE TRIBUNALS CONCLUSION WAS NOT IN ACCORDANCE WITH THE FACTS ON RECORD.THE TRIBUNAL,AFTER CONSIDERING OF THE STAND OF THE ASSE SSEE AND ITS FINDING RECORDED IN THE ORIGINAL ORDER,CAME TO THE CONCLUSION THAT A CASE FOR RECTIF ICATION UNDER SECTION 254(2) WAS NOT MADE OUT. DECIDING THE MATTER THE HONBLE COURT HELD THAT WHE RE AN ERROR WAS FAR FROM SELF EVIDENT, IT CEASED TO BE AN APPARENT ERROR,THAT THE SO CALLED I NACCURACIES OR WRONG RECORDING OF FACTS AS ALLEGED WERE NOT PATENT MISTAKES WHICH CONSTITUTED THE SINE QUA NON FOR EXERCISE OF POWER U/S. 254 (2) OF THE ACT. SIMILARLY,IN THE MATTER OF PERFETTI VAN MELLE INDIA P. LTD.(296ITR595)HONBLE DELHI HIGH COURT HAS AGAIN HELD AS FOLLOWS: SECTION 254(2) OF THE INCOME-TAX ACT, 1961, ENABLE S THE CONCERNED AUTHORITIES TO RECTIFY ANYMISTAKE APPARENT FROM THE RECORD.AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER THIS SECTION. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON, IS NOT AN ERROR APPARENT ON THE RECORD,ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT ALLOWED A 3 M.A.NO.287/MUM/2013 S. VINODKUMAR DIAMONDS PVT. LTD . DEDUCTION,EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE ACT. HONBLE KARNATAKA HIGH COURT HAD ALSO AN OCCASION T O DEAL WITH THE SAME SUBJECT IN THE MATTER OF MCDOWELL AND COMPANY LTD.(310ITR 215).IN THAT CASE TRIBUNAL HAD DECIDED THE APPEAL APPEAL OF THE ASSESSEE AFTER CONSIDERING THE RIVAL SUBMISSION S.LATER ON AN APPLICATION WAS MOVED BY THE ASSESSEE U/S.254 OF THE ACT FOR RECTIFYING THE MIST AKE.TRIBUNAL ALLOWING THE MA FILED BY THE ASSESSEE GRANTED IT RELIEF.REVERSING THE ORDER OF T HE TRIBUNAL,THE HONBLE COURT LAID DOWN FOLLOWING PRINCIPLES: APPLICATION OF THE PRINCIPLES LAID DOWN BY THE SUP ERIOR COURTS TO THE FACTS OF THE CASE BEFORE THE TRIBUNAL ON ERRONEOUS UNDERSTANDING OF SUCH PRINCIP LES, RECORDING OF AN ERRONEOUS FINDING BY IT BASED ON THE FACTS ON RECORD, ARRIVING AT A CONCLUS ION ON ERRONEOUS APPLICATION OF PROVISIONS OF LAW TO THE FACTS OF THE CASE, ETC., CANNOT BE HELD TO BE A MISTAKE APPARENT FROM THE RECORD WARRANTING ANY RECTIFICATION BY THE TRIBUNAL IN EXE RCISE OF ITS POWER UNDER SECTION 254(2) OF THE INCOME-TAX ACT,..SUCH AN EXERCISE OF POWER UNDER SECTION 254(2) OF THE ACT AMOUNTS TO REVIEW OF ITS EARLIER ORDER ON THE MERITS BUT NOT RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD AND SUCH REVIEW WOULD CERTAINLY BE BEYOND T HE SCOPE OF SECTION 254(2) OF THE INCOME-TAX ACT. 3.1. FROM THE ABOVE IT IS CLEAR THAT THE WORDS MISTAKE A PPARENT FROM RECORD,AS APPEARING IN THE SECTION 254(2)HAVE A SPECIAL MEANING AND DEFINITE C ONNOTATION.AS PER THE SETTLED PRINCIPLE OF TAXATION JURISPRUDENCE A PATENT,MANIFEST AND SELF-E VIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT ,CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND ONLY SUCH A MISTAKE CAN BE CORREC TED WHILE APPLYING PROVISIONS OF SECTION 254 (2) OF THE ACT.IT IS A SETTLED LEGAL PROPOSITION OF LAW THAT THE SCOPE OF SECTION 254(2) IS VERY LIMIT ED AND CIRCUMSCRIBED. FOR EXERCISING JURISDICTION UNDE R THE SAID SECTION,IT IS A MANDATORY CONDITION THAT SUCH MISTAKE SHOULD BE SO APPARENT THAT A MERE LOOK AT IT CAN PROVE ITS THE EXISTENCE.IF THE APPLICANT HAS TO ADVANCE LONG ARGUMENTS, IT WILL NO T FALL UNDER THE CATEGORY OF APPARENT MISTAKE.IT IS SAID THAT PROVISIONS OF SECTION 254(2) DO NOT CO NFER POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER OR RE-APPRECIATE OR RE-EVALUATE EVIDENCE. 4 .NOW,WE WOULD LIKE TO NARRATE THE FACTS OF THE CASE IN BRIEF.IN THE APPEAL FILED BY THE ASSESSEE,IT HAD RAISED TWO GROUNDS.ONE OF THEM WAS ABOUT DISALL OWANCE OF PROPORTIONATE INTEREST EXPENDITURE OF RS.13,52,741/-.AFTER CONSIDERING THE RIVAL SUBMI SSIONS THE TRIBUNAL HAD HELD THAT CONSIDERING THE FACTS OF THE CASE PROVISO TO SECTION 36(1) (III ) WAS APPLICABLE,THAT NEITHER BEFORE THE AO NOR BEFORE THE FAA THE ASSESSEE HAD PROVED THAT INTERES T FREE FUNDS WERE GIVEN OUT OF APPELLANTS OWN FUNDS OUT OF INTERNAL ACCRUALS,THAT BOTH THE AUTHOR ITIES HAD GIVEN A CATEGORICAL FINDING THAT NO EVIDENCE WAS PRODUCED BEFORE THEM IN THAT REGARD.WE FIND THAT THE ASSESSEE HAD NOT FILED AN APPLICATION BEFORE THE AO OR THE FAA U/S.154 OF THE ACT STATING THAT IT HAD FURNISHED THE DETAILS OF UTILISING ITS OWN FUND AND THEY HAD GIVEN A WRONG F INDING OF FACTS IN THEIR ORDERS.IT PROVES THAT FINDING OF FACT GIVEN BY THE OFFICERS OF THE DEPART MENT WAS FACTUALLY CORRECT.THE TRIBUNAL CONSIDERING THE ABOVE FACTUAL POSITION,DECIDED THE ISSUE IN A PARTICULAR MANNER THAT ALSO ACCEPTING THE ALTERNATE ARGUMENT OF THE ASSESSEE.WE WOULD ALS O LIKE TO DISCUSS THE FACTS OF THE CASE OF RELIANCE UTILITY(SUPRA).IN THAT MATTER THE ASSESSEE HAD, BEFORE THE FAA, FILED A DETAILED CHART OF AVAILABILITY OF FUNDS AND CONSIDERING THOSE PECULIA R FACTS,HE HAD ALLOWED THE RELIEF THAT WAS CONFIRMED BY THE HIGHER FORUMS.BUT,IN THE MATTER BE FORE US,THE ASSESSEE DID NOT PROVE THE FACT OF NON UTILISATION OF BORROWED FUNDS.SECODLY,THE ASSES SEE ITSELF HAD ARGUED THAT EVEN IF DISALLOWANCE HAD TO MADE IT SHOULD HAVE BEEN RESTRICTED TO THE I NVESTMENT MADE IN THE YEAR UNDER CONSIDERATION. AFTER DELIBERATING UPON THE FACTS AND CIRUCUMSTANCE S OF THE CASE THE TRIBUNAL REMANDED THE MATTER TO THE FILE OF THE AO TO RESTRICT THE INTEREST EXPE NDITURE.THEREFORE, IN OUR OPINION,IT IS NOT A CASE WHERE THE ASSESSEE CAN BE GRANTED RELIEF AS PER THE PROVISIONS OF SECTION 254 (2)OF THE ACT.IN SHORT,THERE IS NO MISTAKE THAT IS APPARENT FROM REC ORD. 5. SECOND GROUND OF APPEAL WAS ABOUT LOSSES SUFFERED B Y THE ASSESSEE ON ACCOUNT OF FORWARD CONTRACTS OF FOREIGN EXCHANGE FLUCTUATION.THE AO AS WELL AS THE FAA REJECTED THE CLAIM MADE BY 4 M.A.NO.287/MUM/2013 S. VINODKUMAR DIAMONDS PVT. LTD . THE ASSESSEE.DURING THE ASSESSMENT PROCEEDINGS THE AO HAD CALLED FOR COMPUTATION OF EXCHANGE RATE DIFFERENCE INCLUDING ALL THE TRANSACTIONS IN D ERIVATIVE INSTRUMENTS INCLUDING FORWARD CONTRACTS.IT WAS FOUND THAT THERE WAS EXCHANGE RATE DIFFERENCE UNDER THREE HEADS EXPORT EXCHANGE DIFFERENCE,FORWARD CONTRACT EXCHANGE DIFFERENCE AND PCFC/EBRD ACCOUNT.AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,HE GAVE A CATEGORICAL F INDING OF FACT THAT THE ASSESSEE HAD NOT BEEN ABLE TO ADDUCE ANY EVIDENCE TO PROVE THAT FORWARD C ONTRACT WERE TO HEDGE AGAINST ANY ACTUAL BILLS, THAT THE CASE OF THE ASSESSEE WAS COVERED BY THE IN STRUCTION ISSUED BY THE CBDT(INS.NO.3OF 2010),THAT HE HAD PERUSED THE COPY O FORWARD CONTRA CTS ENTERED IN TO BY THE ASSESSEE,THAT SAME WERE NOT ENTERED THROUGH ANY RECOGNISED STOCK EXCHA NGE,THAT LOSSES INCURRED BY THE ASSESSEE DURING THE YEAR ON ACCOUNT OF CHANGE IN VALUE OF CU RRENCIES AT THE TIME OF PAYMENT HAD ALREADY BEEN ALLOWED TO IT.HE HAD DISALLOWED ONLY THOSE LOS SES WHERE PAYMENTS WERE OUTSTANDING AT THE YEAR END AND IT WAS NOT CERTAIN AT WHAT EXCHANGE RA TE THOSE PAYMENTS WERE GOING TO BE MADE OR RECEIVED.HE ALSO HELD THAT LOSS CLAIMED BY THE ASSE SSEE WAS OF CONTINGENT NATURE.IN THE APPELLATE PROCEEDINGS THE FAA DISTINGUISHED THE CASES OF WOOD WARD GOVERNER(SUPRA)AND BADRIDAS GAURIDA PVT. LTD. (SUPRA)MENTIONED IN THE APPLICATION FILED BY THE ASSESSEE. HE AT PARAGRAPH NO.5.3.15 OF HIS ORDER GAVE FOLLOWING FINDING OF FACT: IN THE INSTANT CASE THERE ARE NUMBER OF TRANSACTIO NS AND FORWARD CONTRACTS HAVE BEEN TAKEN BY THE APPELLANT AND CANCELLED.THUS,IT IS NOT AN ISOLATED TRANSACTION. THE ASSESSEE HAD NOT CHALLENGED ANY OF THE FINDING OF THE FACTS MENTIONED BY THE REVENUE AUTHORITIES BY FILING RECTIFICATION APPLICATION,SO, THE FINDING GIVEN BY THEM HAVE TO BE TAKEN AS ADMITTED FACTS.THE TRIBUNAL CONSIDERED THE THESE FI NDINGS AS WELL AS THE FACT THAT THE ASSESSEE HAD ADMITTED THAT WHENEVER MARK TO MARKET VALUATION RES ULTED IN LOSS SAME WAS DEBITED TO P & L ACCOUNT,THAT IF SUCH VALUATION RESULTED IN PROFIT S AME WAS IGNORED AND NOT CREDITED TO P&L ACCOUNT (FAA ORDER PARA 5.3.18 PAGE 20).IN OUR OPINION,FACT S OF WOODWARD GOVERNER(SUPRA) ARE TOTALLY DIFFERENT FROM THE FACTS OF THE PRESENT CASE.IN THA T MATTER WHENEVER DOLLAR RATES STOOD REDUCED THE AO HAD TAXED GAINS AND IN THE YEAR OF LOSS SAME WAS NOT ALLOWED.CONSIDERING THOSE PECULIAR FACTS THE HONBLE APEX COURT HAD DELIVERED THE JUDGMENT.I N OUR OPINION,FACTS OF BOTH THE CASES ARE DISTI -NGUISHABLE.COMING THE FACTS OF THE CASE OF BADRIDA S GAURIDA PVT. LTD. (SUPRA),WE WOULD LIKE TO MENTION THAT IN THAT MATTER CONTRACTS WERE LINKED W ITH THE ASSESSEES BUSINESS AND ON ACCOUNT OF FORWARD BOOKING CONTRACTS WITH BANKS WITH RESPECT T O THE EXPORT ORDERS.BUT,IN THE INSTANT CASE THE BOOKING AND CANCELLATION OF FORWARD CONTRACT OF EXC HANGE WERE NOT IN RESPECT OF SPECIFIED EXPORT OR IMPORT ORDERS.NOT ONLY THIS ALL THE CONTRACTS HA D BEEN CANCELLED.OUR OBSERVATIONS ARE BASED ON THE UNCHALLENGED FINDING OF FACTS GIVEN BY THE LOWE R AUTHORITIES.IN SHORT,BOTH THE CASES RELIED UPON BY THE ASSESSEE ARE OF NO HELP AS THE FACTS OF THOS E CASES ARE TOTALLY DIFFERENT FROM THE FACT OF THE CASE UNDER APPEAL.WE FIND THAT THE TRIBUNAL HAD DEC IDED THE MATTER ON THE BASIS OF AVAILABLE UNCHALLENGED FACTS AND AS PER THE PROVISIONS OF LAW .IN OUR OPINION,THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. IN THE CASE BEFORE US,THE ASSESSEE HAS NOT POINTED OUT ANY ARITHMETICAL MISTAKE IN THE ORDER NOR HAS IT PROVED THAT LEGAL POSITION TAKEN BY THE TRIBUNAL HAS ALTERED BECAUSE OF SUBSEQUENT JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT OR THE APEX C OURT.THE ASSESSEE IS AGGRIEVED BY THE DECISION TAKEN BY IT.IN SUCH A CASE PROPER COURSE OF ACTION IS TO CHALLENGE THE ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT AND THE ASSESSEE HAD ALREADY AVAILED THE REMEDY.THE ASSESSEE,IN THE MATTER UNDER CONSIDERATION,WANTS THE TRIBUNAL TO RE VIEW ITS ORDER.BUT,SAME IS NOT PERMISSIBLE. SO, WE ARE OF THE OPINION THAT APPLICATION FILED BY THE ASSESSEE DESERVES TO BE REJECTED. EVEN IF THERE WAS FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY THE ASSESSEE FOR ARRIVING AT A CONCLUSION IT WOULD NOT BE AN ERROR APPARENT ON THE RECORD,ALTHOUGH IT MAY BE AN ERROR OF JUDGME - NT,AS HELD IN THE MATTER OF RAMESH ELECTRICAL(SUPRA ).RELYING UPON THE PRINCIPLES ENUMERATED IN THE CASES OF ORDERS OF RAMESH ELECTRICAL(SUPRA)AND MCDO WELL AND COMPANY LTD. (SUPRA),WE DECIDE THE GROUNDS TAKEN BY THE ASSESSEE AGAINST IT. AS A RESULT,MA FILED BY THE ASSESSEE STANDS DISMISSED. (& )!* (& )!* (& )!* (& )!* + (! + (! + (! + (! , , , , - - - - . . . . / / / / 00+ 00+ 00+ 00+ 1 11 1 2! 2! 2! 2! . . . . ! ! ! ! 34 3434 34 . 5 M.A.NO.287/MUM/2013 S. VINODKUMAR DIAMONDS PVT. LTD . ORDER PRONOUNCED IN THE OPEN COURT ON 4TH, MARCH,2015. ' #$%& )5 . 4 EKPZ EKPZ EKPZ EKPZ 201 5 $ / 6 SD/- SD/- ( . . / I.P.BANSAL) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ) / MUMBAI, . /DATE: 04.03.2015 SK ' ' ' ' ! 0 ! 0 ! 0 ! 0 70%! 70%! 70%! 70%! / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ 8 9 , 4. THE CONCERNED CIT / 8 9 5. DR E BENCH, ITAT, MUMBAI / 0: / !+ B BB B ;< , . . . ) 6. GUARD FILE/ / ; = 0! ! //TRUE COPY// ' / BY ORDER, > / 3 DY./ASST. REGISTRAR +& , ) /ITAT, MUMBAI