2018 (1) TMI 883 - AT - Income Tax

Rectification under Sec. 254(2) - Held that - The non-consideration of the CBDT Circular No. 789, dated 13th April, 2000 in the backdrop of the judgment in the case of Azadi Bachao Andolan Vs. DCIT (2003 (10) TMI 5 - SUPREME Court) and that in the case of DIT Vs. Universal International Music B.V. (2013 (4) TMI 641 - BOMBAY HIGH COURT) without confronting the same to the assessee at the time of hearing of the appeal, had thus to the said extent rendered the order passed by the Tribunal under Sec. 254(1) as suffering from a mistake which is apparent from record. We thus without expressing any view on the merits of the case recall the order passed by the Tribunal under Sec. 254(1), dated 16.12.2016, for the purpose of rectifying the order after taking cognizance of the aforesaid mistakes as are apparent from the record. - The application filed by the assessee under Sec. 254(2) is allowed

Summary

Issues:
Rectification of order passed by Tribunal under Sec. 254(1) of the Income-tax Act based on grounds related to beneficial ownership and consideration of foreign court ruling.

Analysis:
1. Beneficial Ownership Issue:
The applicant sought rectification of the Tribunal's order under Sec. 254(2) based on the grounds of beneficial ownership. The applicant relied on Circular No. 789 issued by the CBDT, the Supreme Court's decision in Azadi Bachao Andolan case, and the Bombay High Court's ruling in Universal International Music B.V. case. The applicant provided a tax residence certificate to evidence beneficial ownership. The Authorized Representative highlighted the mistakes in the Tribunal's order, emphasizing the importance of considering the mentioned circulars and judgments. The Tribunal agreed that the omission of considering these references constituted a mistake apparent from the record, making the order amenable for rectification.

2. Consideration of Foreign Court Ruling:
The Tribunal's order was also challenged due to the reliance on a foreign court ruling without confronting it to the assessee during the appeal hearing. The Authorized Representative argued that this violated the principles of natural justice, as it deprived the assessee of the opportunity to contest the relevance or correctness of the foreign ruling. The Tribunal, citing the Supreme Court's decision in ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., held that an order not in conformity with relevant judgments constitutes a mistake apparent from the record. Consequently, the Tribunal found the omission of confronting the foreign ruling to be a rectifiable mistake.

In conclusion, the Tribunal allowed the applicant's application under Sec. 254(2) to rectify the order, acknowledging the errors in not considering the relevant circulars, judgments, and the foreign court ruling during the initial proceedings. The order was recalled for rectification, focusing on addressing the mistakes apparent from the record without delving into the merits of the case.