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TMI Blog2018 (1) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... pressing 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 - M.A. No. 221/Mum/2017 (Arising out of ITA No. 1708/Mum/2016) - - - Dated:- 10-1-2018 - Shri R. C. Sharma, AM And Shri Ravish Sood, JM Applicant by : Shri P.J. Pardiwala, Senior Advocate Respondent by : Shri Rajesh Kumar Yadav, D.R ORDER Per Ravish Sood, Judicial Member Order U/s 254(2) The present miscellaneous application filed by the assessee applicant under Sec. 254(2) of the Income-tax act, 1961 (fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent of Netherlands). The Applicant has provided the tax residence certificate to the AO as well as the Tribunal. Such certif icate has suff iciently evidenced the Applicant's tax residence in Mauritius as well as the benef icial ownership of the interest income in question, in accordance with the law established by Circular 789 of the CDBT and the Supreme Court ruling in Azadi Bachao Andolan (supra). 2. The ld. Authorized Representative (for short A.R ) Shri P.J. Pardiwala, Senior Advocate, at the very outset of the hearing of the application submitted that a perusal of the order passed by the Tribunal under Sec. 254(1) revealed certain mistakes, which being glaring, patent, obvious and apparent from record rendered the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the said certificate sufficiently evidenced the applicants tax residence in Mauritius, as well as the beneficial ownership of the interest income in question in accordance with the law established by the Circular No. 789 (supra) of the CBDT and the judgment of the Hon ble Supreme Court in the case of Azadi Bachao Andolan (supra). The ld. A.R in the backdrop of the aforesaid facts submitted that the non consideration by the Tribunal of the aforesaid material and judicial pronouncements relied upon by the assessee appellant, viz. (i). CBDT Circular No. 789, dated 13th April, 2000; (ii). judgment of the Hon ble Supreme Court in the case of Azadi Bachao Andolan (supra); and (iii). judgment of the Hon ble High Court of Bombay in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son that the judgments referred to and relied upon by the assessee were not considered by the Tribunal while passing the order would not render the order as suffering from a mistake apparent from record. It was thus submitted by the ld. D.R that the application filed by the assessee was not maintainable. 5. We have heard the authorized representatives for both the parties, perused the order passed by the Tribunal under Sec. 254(1), dated 16.12.2016 and the material available on record. We find from a perusal of the records that the Ld. A.R had in his contentions raised before the Tribunal during the course of hearing of the appeal, which thereafter at the instance of the bench were placed on record by him by way of a written note dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed by the Tribunal which is not found to be in conformity with the judgment of the Hon ble Supreme Court or that of the jurisdictional High Court, irrespective of the fact that neither of the parties had referred to the said judgment at the time of hearing of the appeal before the Tribunal, would however render the order of the Tribunal as suffering from a mistake apparent from record, rectifiable under Sec. 254(2) of the Act. We thus are of the considered view that as the assessee in the present case had relied on the judgment of the Hon ble Supreme Court in the case of Azadi Bachao Andolan Vs. DCIT 263 ITR 706 (SC) and the judgment of the Hon ble High Court of Bombay in the case of DIT Vs. Universal International Music B.V. (2013) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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