This miscellaneous application has been moved by Revenue seeking to rectify decision dt. 23rd March, 2004 given by Special Bench. It is contended in miscellaneous application that question of gain of Rs. 11,06,49,739 arising out of cancellation of contracts for forward cover attributed to proposed repayment of principal amount of loan was closely connected with deductibility of Rs. 2,30,67,615 claimed as roll over charges for extending contracts for forward cover which were cancelled. assessee in its return had claimed that gain of Rs. 11,06,49,739 was capital receipt. roll over charges were claimed to be expenditure of revenue nature. following question was referred to Special Bench: "Whether, on facts and in law, gains earned on cancellation of foreign exchange forward contract are capital receipt or revenue receipts? If it is capital receipt, whether same should be reduced from cost of plant and machinery in connection with which forward contract was entered into?" After considering facts and circumstances of case, Special Bench held that gain arising from cancellation of forward cover contract was capital receipt and not liable to tax and should be reduced from cost of machinery in relation to which foreign contracts were entered into. In miscellaneous application, Revenue has stated that connected question relating to deductibility of roll over charges was also required to be considered, as roll over charges cannot have character different from forward cover contracts and, therefore, if amount received on cancellation of forward cover contract was of capital nature, so was roll over charges. In not deciding above question, according to Revenue, Special Bench committed mistake apparent from record. In this connection, it has been emphasized that aforesaid fact relating to treatment given to roll over charges by AO and CIT(A) was specifically brought to notice of Special Bench during course of hearing of appeal in oral submissions. fact was also brought to notice of Special Bench in writing in letter filed on 3rd March, 2004 wherein it had been stated as under: "In view of facts and circumstances as narrated above, points for determination have to include, inter alia, that in case receipt of Rs. 11.06 crores is held to be capital receipt, whether related rolled over charges of Rs. 2,30,67,615 would still be allowable as revenue expense as basis, on which AO allowed same, would stand reversed. It is related and linked issue and may require adjudication depending upon way main issue is decided............. roll over charges of Rs. 2,30,67,615 allowed by AO as same was held to be paid in course of earning taxable profit would also be required to be treated as capital expenditure and added to cost of asset." It is further contended by Revenue that Tribunal having decided issue, Regular Bench, which is seized of matter now, is not competent to make any alteration in order of Special Bench and result is that assessee is taking benefit of roll over charges as revenue expenditure in addition to benefit of gains being held as capital receipt. Thus, roll over expenditure directly connected with forward cover contracts, is being claimed as revenue expenditure. This mistake, according to Revenue, has occurred as Special Bench failed to deal with plea raised before it by Revenue. copy of above miscellaneous application was forwarded to assessee for his objections. In response to above notice, Shri Anoop Sharma, learned counsel, appearing on behalf of assessee, has opposed request of Department. He raised four objections to entertainment of application, these are summarized below: (i) That only one single question was referred to Special Bench noted earlier, and Special Bench had no jurisdiction to consider any other issue. Therefore, there was no question of Special Bench considering claim relating to roll over charges. As Special Bench had no jurisdiction to go into question now being raised by Revenue in miscellaneous application, there is no question of involvement of any mistake, much less mistake apparent from record in order of Special Bench. In this connection, Shri Sharma placed reliance on decision of Gauhati High Court in CIT vs. Highway Construction Co. (P) Ltd. (1996) 131 CTR (Gau) 310: (1996) 217 ITR 234 (Gau). (ii) Even if it was assumed that there was mistake in holding that roll over charges were revenue expenditure, said mistake was committed not by Special Bench but by AO. He read out relevant portion of assessment order where roll over charges were treated as revenue expenses. Tribunal, therefore, had no jurisdiction to carry any rectification. (iii) It was submitted that order of Special Bench was passed under s. 255(3) of IT Act. Tribunal, according to Shri Sharma, could rectify mistake apparent from record under s. 254(2) of IT Act and said section covers only orders passed under s. 254(1) of Act. Sec. 255(3) is not covered b y provision of s. 254(2) of IT Act. It was, accordingly, submitted that Tribunal has no power to rectify mistake. (iv) Lastly, it was submitted that highly controversial and debatable point was now being raised by Revenue in miscellaneous application which could hardly be called mistake apparent from record. Shri Sharma submitted that there may be error of judgment in order of Special Bench but there was distinction between error of judgment and mistake apparent from record. It was well accepted principle that Tribunal has no power to correct error of judgment. Shri Sharma submitted that Revenue, if they are so aggrieved, could challenge order of Special Bench through writ petition before High Court. He maintained that Tribunal under s. 254(2) of IT Act had no jurisdiction to rectify mistake. In rebuttal, learned Departmental Representative controverted various submissions made by Shri Sharma, learned counsel on behalf of assessee. He argued that Tribunal has committed mistake in not considering material plea raised before Tribunal relating to claim of roll over charges. It is settled law that no party could be made to suffer on account of mistake of Court or Tribunal. assessee cannot take benefit of reasonable view taken by AO in allowing these charges in view of their proximate connection with gains which were held taxable by him as revenue receipt. AO was consistent in his approach by holding both gains and roll over charges as revenue receipts. Tribunal was duty bound to take similar view. learned Departmental Representative relied upon decision of Allahabad High Court in case of ITO vs. ITAT (1965) 58 ITR 634 (All). learned Departmental Representative further submitted that Tribunal has inherent power to correct mistake apparent from record. He referred to and relied upon: (i) CIT vs. J. Sundaram (1964) 52 ITR 474 (Mad), and (ii) ITO vs. S.B. Singar Singh & Sons & Anr. (1970) 75 ITR 646 (All). learned Departmental Representative further submitted that s. 254(2) would apply to any order passed by Tribunal. We have given careful thought to rival submissions of parties. A O had allowed roll over charges as revenue deduction with following observations: "... In view of relating facts, I hold that these expenses in form of roll over charges are revenue in nature and are allowed against income earned from cancellation of foreign exchange forward contracts. This expenditure has been allowed here on premises that income earned from forward contracts is taxable under IT Act as held in earlier part of this order." On appeal, CIT(A) agreed with view of AO and confirmed assessment with following observations on point raised now in miscellaneous application: "Another very vital aspect of case is that though roll over charges have got to be capitalized being direct cost of plant and machinery as per Accounting Standards and appellant-company did, in fact, capitalize these in its accounts by debiting amounts to plant and machinery account. However, when it came to taxation, company did make claim that these were revenue expenses and should be allowed as such. Though AO did not accept claim in earlier year, it was allowed by him during year under appeal. roll over charges represent difference between forward rate and spot rate of currency on day contracts are rolled over. If these are claimed as revenue expenses, profits on cancellation of covers could not be treated otherwise by appellant-company. On other hand, appellant-company has debited roll over charges and credited profits on cancellation of contracts relating to liability on account of interest. But in case of liability relating to principal amount, roll over charges are being claimed as revenue expenses but gains are being shown on capital account. This shows inherent contradiction in stand of company. profits/losses arising on cancellation of contracts and roll over charges represent same nature of transactions and these have to be given same treatment. Viewed from this angle also, appellant-company was not justified in treating such gains as capital in nature." It is evident from above that question of deduction of roll over charges was intimately connected with nature and character of gains from cancellation of contract and its taxability under IT Act. There is further no dispute that said question was raised by Revenue during course of arguments before Special Bench. In their written submissions also, part of which has been extracted above, Revenue pleaded that above question be also examined along with question of taxability of profit from cancellation of contracts. In not referring to claim of Revenue, Special Bench, in our considered opinion, committed mistake apparent from record. aforesaid omission, in not referring to material aspect of case, is likely to cause serious prejudice to case of Department as rightly contended by learned Departmental Representative. We are, therefore, inclined to rectify aforesaid order dt. 23rd March, 2004 of Special Bench. We have also considered carefully objections raised by learned counsel of assessee, Shri Anoop Sharma, but find no substance in them. regards first argument that specific question was referred to Special Bench and that Special Bench had no jurisdiction to consider claim relating to roll over charges, we have already extracted above relevant findings of A O and CIT(A). We agree with Revenue authorities that question of deducibility of roll over charges was intimately linked and same could not be separately decided without considering nature and character of receipt of gains. separately decided without considering nature and character of receipt of gains. Therefore, Revenue authorities were justified in putting forth submission relating to consideration of deductibility of roll over charges. It being material aspect of case should have been referred to by Tribunal and position should have been made clear as to who and at what stages said closely connected issue was to be considered and decided. In not taking any note of submissions made by Revenue, Tribunal did commit mistake apparent from record. issue raised by Revenue cannot be treated to be totally foreign to question raised before Special Bench. We, therefore, find no force in first submission made by Shri Anoop Sharma. second submission of Shri Sharma that mistake, if any, was committed by AO and not by Tribunal, is also devoid of any substance. AO, as noted earlier, had treated gains from cancellation of contract as revenue receipt and, therefore, expenditure like roll over charges was also treated as revenue expenditure. This question was required to be considered by t h e Tribunal. However, no finding was recorded on plea raised by Revenue on above claim. said order was confirmed. It is only Special Bench of Tribunal, which took view contrary to one taken by Revenue authorities, and, therefore, it was imperative that reference should have been made to connected issue. order of AO had merged with order of higher authorities and, therefore, AO cannot rectify its order unless directions to above effect are received from superior authorities. We, therefore, reject above contention of Shri Sharma. next contention of Shri Sharma that order passed by Special Bench was order under s. 255(3) of IT Act, provision not covered by s. 254(2) of IT Act, is also without substance. It is clear from plain language of s. 255(3) of IT Act, that power is vested with President of Tribunal to constitute Special Bench for disposing of any case. In case whole appeal is not referred to Special Bench but specific question is referred to such Bench, then said question is considered and decided by Special Bench in process of "disposing" appeal. Any order passed by Special Bench is order under s. 254 of IT Act. It is part and parcel of order disposing of appeal. Therefore, order passed by Special Bench, if it contains mistake apparent from record, can be rectified under s. 254(2) of IT Act. Having regard to scheme of disposal of appeals by Tribunal, we do not see any impediment in Special Bench rectifying apparent mistake in its order. Lastly, Shri Anoop Sharma had argued that issue raised by Revenue is debatable issue and, therefore, Tribunal has no power to entertain request of Revenue and carry rectification as prayed. We have already noted facts and circumstances of case and relevant finding of Revenue authorities and case argued before Special Bench. In our considered opinion, no debatable point is involved in point raised by Revenue. claim raised before us is very simple; material point was agitated by them during course of hearing of appeal but no reference to said material point has been made by Special Bench and above omission is likely to cause prejudice to case of Revenue. assessee has got double advantage. We find substance in this contention of Revenue and are of view that matter involves no debate. In light of above discussion, we rectify order of Special Bench dt. 23rd March, 2004 by inserting following para 25A after para 25 of said order: "25A. learned Departmental Representative during course of hearing of appeal has argued that we should also consider allowability of roll over charges since it is related and linked to issue of assessment of t h e gains as revenue/capital receipt. In this connection, our attention was drawn to written submissions filed on 3rd March, 2004 wherein following prayer was made: In view of facts and circumstances as narrated above, points for determination has to include, inter alia, that in case receipt of Rs. 11.06 crores is held to be capital receipt, whether related rolled over charges of Rs. 2,30,67,615 would still be allowable as revenue expense as basis, on which AO allowed same, would stand reversed. It is related and linked issue and may require adjudication depending upon way main issue is decided............. roll over charges of Rs. 2,30,67,615 allowed by AO as same was held to be paid in course of earning taxable profit would also be required to be treated as capital expenditure and added to cost of asset. In our opinion, this issue relating to deductibility of roll over charges is intimately connected with question of taxability of gains, as rightly held by IT authorities. However, having regard to fact that this aspect of matter has not been specifically referred to Special Bench, we leave it open to Department to raise this plea before Division Bench for considering and deciding question in accordance with law and in light of answer given by us to question referred to us." rectification application is allowed in terms stated above. *** ASSISTANT COMMISSIONER OF INCOME TAX v. APOLLO TYRES LTD.