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TMI Blog2021 (3) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the issue in AY 2008-09 has resulted in a mistake apparent from record in respect of this issue in AY 2008- 09. Identical type of mistake has been pointed out by the assessee in AY 2009-10 also. What was pointed out by the AO was that the export proceeds were not realized within the time prescribed in sec.10A of the Act. Accordingly, following our decision rendered in AY 2008-09, we hold that there is mistake apparent from record in AY 2009-10 also on this issue, as there is incorrect appreciation of facts. As noticed earlier that the jurisdictional Hon ble Karnataka High Court has held in the case of Mcdowell Co. Ltd [ 2008 (3) TMI 301 - KARNATAKA HIGH COURT] that the case of erroneous application of law/provisions will fall outside the scope of sec.254(2) of the Act. The assessee has contended that there is erroneous application of law/provisions of the Act. Hence this plea raised by the assessee in both the years would fall outside the scope of sec.254(2) of the Act. Accordingly, we reject this plea of the assessee in both the years. We recall the orders passed by Tribunal in AY 2008-09 and 2009-10 for the limited purpose of adjudicating the Ground No.1 in both a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) also confirmed the order of the A.O. 4. Before the Tribunal, the assessee had placed reliance on the decision rendered by the jurisdictional Karnataka High Court in the case of Wipro Limited vs. DCIT 382 ITR 179 and also decision rendered by the coordinate bench in the assessee s own case for assessment years 2010-11 2011-12, wherein on identical set of facts, the co-ordinate bench has allowed the deduction in respect of export turnover for which letters for extension of time limit were furnished to bank. 5. The Ld. A.R. submitted that the Tribunal, in its order passed for assessment year 2008-09, has taken note of the order passed by the CIT(A) for assessment year 2009-10. In the said order, CIT(A) had observed that the assessee itself has admitted that it could not realize an amount of ₹ 20.23 crores out of the total export sales of ₹ 1880.48 crores. Based on the above such observation of Ld CIT(A) made in AY 2009-10, the Tribunal took the view in AY 2008- 09 that the assessee himself has admitted before Ld. CIT(A) that it could not realize the amount. The fact remains that the above said observations were made by Ld CIT(A) in the appeal pertaining to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. 310 ITR 215. He submitted that the prayer of the assessee would lead to review of the order passed by the Tribunal and the same is not permitted u/s 254(2) of the Act. The Ld. D.R., more particularly relied upon the following observations made by the Tribunal in the above said case. 7. Section 254 of the Act reads as follows : (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub- section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. The Hon'ble Karnataka High Court in CIT v. Mc. Dowell Co. Ltd. [2009] 310 ITR 215/177 Taxman 317 after considering the decision of the Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. v. CIT [2007] 295 ITR 466/165 Taxman 307 (SC) has held that the power under Section 254(2) of the Act cannot be exercised so as to review order passed by the Tribunal. The Hon'ble Court held that application of principles laid down by the superior Courts to the facts of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, the Tribunal has considered the facts relating to AY 2009-10 for deciding the issue urged in AY 2008-09. It was also submitted that there is no observation in the orders of the tax authorities about non-realisation of export proceeds altogether, as observed by the Tribunal, i.e., it is nobody s case that the assessee did not realize export proceeds at all. According to Ld A.R, Ld CIT(A) observations also meant that the assessee did not realize the amount mentioned above within the prescribed time. Thus, we notice that it is a case of incorrect understanding of facts. 12. Before us Ld D.R placed reliance on the decision rendered by the co-ordinate bench in the case of Gowthami Associates (supra), which in turn placed its reliance on the decision rendered by Hon ble jurisdictional Karnataka High Court in the case of Mcdowell Co. Ltd (supra). We have gone through the above said decisions and we notice that the cases of erroneous understanding/application of law/principles on the facts available on record were held to be outside scope of sec.254(2) of the Act In the instant case, it is a case of incorrect understanding of facts. Accordingly, we find merit in the contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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