2006 (3) TMI 222 - AT - Income Tax

Summary

Issues Involved:

1. Nature of gains from cancellation of foreign exchange forward contracts.
2. Deductibility of roll over charges associated with forward contracts.
3. Jurisdiction of the Special Bench to consider related issues.
4. Application of Section 254(2) of the IT Act for rectification of mistakes.
5. Whether the issue raised by the Revenue is debatable or a mistake apparent from the record.

Issue-wise Detailed Analysis:

1. Nature of Gains from Cancellation of Foreign Exchange Forward Contracts:
The primary issue referred to the Special Bench was whether the gains of Rs. 11,06,49,739 from the cancellation of foreign exchange forward contracts were capital receipts or revenue receipts. The Special Bench concluded that these gains were capital receipts and thus not liable to tax. Furthermore, it was decided that these gains should be reduced from the cost of the machinery related to the foreign contracts.

2. Deductibility of Roll Over Charges:
The Revenue argued that the roll over charges of Rs. 2,30,67,615, which were claimed as revenue expenditure by the assessee, were directly connected to the forward contracts and should be treated similarly to the gains from the cancellation of these contracts. The Revenue contended that if the gains were considered capital receipts, the roll over charges should also be treated as capital expenditure. The Tribunal acknowledged that the question of deductibility of roll over charges was intimately connected with the nature and character of the gains from the cancellation of contracts and its taxability under the IT Act. The Tribunal recognized that this issue was raised by the Revenue during the appeal but was not addressed by the Special Bench, constituting a mistake apparent from the record.

3. Jurisdiction of the Special Bench to Consider Related Issues:
The assessee's counsel argued that the Special Bench had no jurisdiction to consider the issue of roll over charges as only one specific question was referred to it. However, the Tribunal found that the question of deductibility of roll over charges was closely linked to the main issue of the nature of the gains, and thus, it should have been considered by the Special Bench. The Tribunal determined that the omission to refer to this material aspect constituted a mistake apparent from the record.

4. Application of Section 254(2) of the IT Act for Rectification of Mistakes:
The assessee's counsel argued that the order passed by the Special Bench under Section 255(3) of the IT Act could not be rectified under Section 254(2) of the IT Act. The Tribunal disagreed, stating that any order passed by the Special Bench is part of the order disposing of the appeal and can be rectified under Section 254(2) if it contains a mistake apparent from the record. The Tribunal emphasized that there was no impediment to the Special Bench rectifying such a mistake.

5. Whether the Issue Raised by the Revenue is Debatable or a Mistake Apparent from the Record:
The Tribunal concluded that the issue raised by the Revenue regarding the deductibility of roll over charges was not debatable but a simple and material point that was not addressed by the Special Bench. The Tribunal found substance in the Revenue's contention that the omission to consider this issue was a mistake apparent from the record and was likely to cause prejudice to the Revenue's case.

Conclusion:
The Tribunal rectified the order of the Special Bench dated 23rd March 2004 by inserting a new paragraph (25A) acknowledging the Revenue's argument regarding the deductibility of roll over charges and leaving it open for the Department to raise this plea before the Division Bench for consideration and decision in accordance with the law. The rectification application was allowed in these terms.