V.B Gupta, J.:— By way of present appeal filed under section 260A of the Income-tax, 1961 (hereinafter referred to as “the Act”), the assessee has challenged two orders passed by the Income-tax Appellate Tribunal (in short as “the Tribunal”), that is, order dated April 22, 2004, in I.T.A No. 4976.Del/2000 (for the assessment year 1998-99) vide which the Tribunal upheld, the disallowance of loss of Rs. 38,30,000 to the assessee and order dated June 15, 2005, passed under section 254(2) of the Act in Misc. Application No. 133.Del/2005 (the assessment year 1998-99) vide which the rectification application of the assessee was dismissed.
2. The assessment order for the year in question was passed on January 10, 2001, vide which foreign exchange fluctuation loss amounting to Rs. 38,30,000 was disallowed by the Assessing Officer. The assessee filed an appeal before the Commissioner of Income-tax (Appeals) who upheld the disallowance on the ground that the exchange fluctuation related to long term loan, and it cannot be allowed as revenue expenditure.
3. Against the order of the Commissioner of Income-tax (Appeals), the assessee filed an appeal before the Tribunal. The Tribunal vide order dated April 22, 2004, upheld the disallowance of loss of Rs. 38,30,000.
4. Thereafter, the assessee filed an appeal before this court. While disposing of the appeal, it was observed by this court on December 6, 2004, that:
“In view of paragraphs 13 and 14 of the Tribunal's order, it is not possible for us to accept the contention that the assessee had produced books of account. It is for the Tribunal, which is a fact finding authority, to examine the same and to record a finding. If the appellant had produced all the necessary documents in this behalf, then the Tribunal should have examined the same. In fact, in such a situation, instead of approaching this court, the assessee ought to have moved the Tribunal under section 254(2) of the Income-tax Act, 1961. It would be open to the appellant to move the Tribunal within 15 days from today. The appeal is disposed of accordingly.”
5. Thereafter, the assessee filed an application under section 254(2) of the Act before the Tribunal and that application was dismissed by the Tribunal vide its order dated June 15, 2005.
6. It has been contended by learned counsel for the assessee that the Tribunal was wrong in not allowing the loss on account of exchange fluctuation in respect of loan taken and utilised in earlier years for working capital purposes on the ground that the assessee has not been able to prove the user thereof, because once in the year of utilisation of loan, the Department has accepted the loan to be utilised on revenue account, it is not open in a subsequent year to allege that the exchange fluctuation on the said loan is not in the nature of revenue loss. Further, the Tribunal has admitted in its order that there may be an error of judgment while passing the original order but still it failed to rectify the mistake under section 254(2) of the Act.
7. Ex facie, the present appeal challenging two different orders passed by the Tribunal dated April 22, 2004, and June 15, 2005, in one single appeal is not maintainable.
8. As far as order dated April 22, 2004, is concerned, the same was challenged by the assessee by way of appeal and vide order dated December 6, 2004, that appeal has been disposed of by this court. Now by way of present appeal, the assessee cannot reagitate the same issue again.
9. Now, coming to the order dated June 15, 2005, passed by the Tribunal, it would be fruitful to reproduce the relevant section, that is, section 254(2) of the Act which is necessary for the purposes of disposal of the present appeal, which reads as under:
“254. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under subsection (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer:
Provided…”
10. This section enables the concerned authorities to rectify any “mistake apparent from the record”. It is well settled that 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 conclusion, 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 deduction, even if the conclusion is wrong, that will be no ground for moving an application under section 254(2) of the Act. Further, in the garb of application for rectification, the assessee cannot be allowed to be permitted to reopen and reargue the whole matter, which is beyond the scope of this section.
11. In a decision of this court in Ms. Deeksha Suri v. ITAT, [1998] 232 ITR 395 while discussing the scope of section 254(2) of the Act, it has been observed that (page 415):
“The foundation for exercising the jurisdiction is “with a view to rectify any mistake apparent on the record” and the object is achieved by “amending any order passed by it”. The power so conferred does not contemplate a rehearing which would have the effect of re-writing an order affecting the merits of the case. Else there would be no distinction between a power to review and a power to rectify a mistake. What is not permitted to be done by the statute having deliberately omitted to confer review jurisdiction on the Tribunal, cannot be indirectly achieved by recourse to section 254(2) of the Act.”
12. Paras 13 and 14 of the order dated April 22, 2004, passed by the Tribunal, the reference of which is there in this court's order dated June 6, 2004, reads as under:
“13. In the light of the above principles, we now proceed to examine the present case. No doubt, in the approval given by the RBI on July 15, 1995, the payment of the loan is stated to be working capital requirements. But that does not in our opinion establish that the assessee has in fact utilised the loan for working capital. It was for the assessee, which possesses exclusive knowledge as to the utilisation of the loan, to prove the same by leading evidence to that effect. It was for the assessee to produce the books of account and point out the entries made therein showing utilisation of the loan. The assessee has not discharged the burden. The Commissioner of Income-tax (Appeals) has recorded a finding that the assessee has not filed any evidence to show utilisation of the loan. Even before us, no such evidence was produced. The assessee thus has failed to establish its case.
14. Learned counsel for the assessee drew our attention to the order of the Commissioner of Income-tax (Appeals) dated September 17, 2002, for the assessment year 1997-98 in which he had accepted the claim of the assessee. But a perusal of the order shows that in that year the assessee had filed some details and documents which persuaded the Commissioner of Income-tax (Appeals) to accept the claim. For the year under appeal, no details have been filed to show utilisation of the loan towards working capital. Each year is a separate and independent year and evidence must be produced for each year separately and independently regarding utilisation of the loan.”
13. There is nothing on record to show that the assessee had produced necessary documents before the income-tax authorities for the assessment year in question.
14. Further, the Tribunal while dismissing the application for rectification, vide impugned order has held that:
“Our attention was invited to para 13 of the order in which the Tribunal has observed that it was for the assessee, which possesses exclusive knowledge as to the utilisation of the loan, to prove the same by leading evidence to that effect by producing the books of account and showing the entries made therein and that the assessee has not discharged this burden either before the Commissioner of Income-tax (Appeals) or before the Tribunal. It is stated that the Tribunal has noted in para 14 of the order that in the assessment year 1997-98 the assessee had filed some details and documents on the basis of which the Commissioner of Income-tax (Appeals) accepted the claim, but has gone further to record that for the year under appeal no such details were filed. The submission of the assessee before us is that the loss was allowed by the income-tax authorities in the assessment years 1996-97 and 1997-98 and a different treatment for the same is not warranted since the facts were the same for the year under appeal also. It is submitted that inasmuch as the Tribunal has overlooked this aspect of the matter, there is an error apparent from the record. It was alternatively submitted that the Tribunal should give a finding about the nature of the loss, whether it is capital or revenue. However, it was fairly admitted before us that this claim was not made before the income-tax authorities or before the Tribunal.”
15. According to this order, it has been admitted before the Tribunal that the claim was not made before income-tax authorities or before the Tribunal. The Tribunal further held that:
“We have considered the matter. Given the findings of the Tribunal in paras 13 and 14 of its order, the present application cannot be accepted. It may perhaps be that the evidence produced in the earlier years was relevant for the purpose of deciding the merits of the asses-see's claim, but when the Departmental Authorities have held that for the year under appeal there was no evidence brought on record to show the utilisation of the loan, and where such a finding has been upheld by the Tribunal, the provisions of section 254(2) of the Act cannot be invoked. We do appreciate the assessee's anxiety and it may even be open to the assessee to argue that the evidence adduced by the assessee for the earlier years would be sufficient to discharge the assessee's burden for the year under appeal, but even if there is grievance on this score, it could not perhaps be redressed by resorting to section 254(2) of the Act. At best it may amount to an error of judgment or may even amount to the Tribunal insisting on the same evidence being formally placed on record for the year under appeal, which may appear to be ritualistic but since the Tribunal has gone on the basis of the question of burden, it is not possible for us to accept the present application. We are also unable to give a finding as to the nature of loss, keeping in view the very fair admission that the question was not raised before the Tribunal or the income-tax authorities.”
16. The assessee in the garb of application for rectification has sought to reopen and reargue the whole matter, which is beyond the scope of section 254(2) of the Act and same is the view of this court in the case of Ms. Deek-sha Suri, [1998] 232 ITR 395.
17. Accordingly, we find that the present appeal is wholly misconceived and without any basis and we do not find any reason to disagree with the findings given by the Tribunal and there is no infirmity in the impugned order passed by the Tribunal. Accordingly, the present appeal filed by the assessee is dismissed.