2018 (10) TMI 1824 - AT - Income Tax

Rectification of mistake u/s 254 - ground of appeal relating to selection of the overseas AE as the tested party had remained omitted to be adjudicated upon - HELD THAT - We are persuaded to subscribe to the contention of the ld. A.R, that the Tribunal while disposing off the aforesaid appeal, had inadvertently omitted to adjudicate the Ground of appeal No.5 raised by the assessee in context of the selection of the overseas AE as the tested party‟. On a perusal of the order of the Tribunal, it emerges that the contention advanced by the ld. D.R in his rebuttal to the averments advanced by the assessee in context of the selection of the overseas AE as a tested party‟ had been referred to by the Tribunal at Page 9- Para 4.2A , however the same thereafter was not followed by an adjudication of the issue on merits. We thus, in terms of our aforesaid observations are of the considered view, that the non-adjudication of the aforesaid Ground of appeal no. 5 has rendered the order of the Tribunal as suffering from a mistake, which being glaring, patent, apparent and obvious from record, thus making the same amenable for rectification u/s 254(2) of the Act. In terms of our aforesaid observations the order passed by the Tribunal u/s 254(1) is recalled, for the limited purpose of adjudicating the Ground of appeal no. 5 . Recall the order passed by the Tribunal u/s 254(1) while disposing off the appeal of the assessee for A.Y 2012-13 2018 (3) TMI 1665 - ITAT MUMBAI for the limited purpose of adjudicating the Ground of appeal No. 5 . Miscellaneous application filed by the assessee is allowed

Summary

Issues:
1. Application under Sec. 254(2) of the Income Tax Act arising from Tribunal's order in ITA No. 674/Mum/2017.
2. Adjudication of "Ground of appeal No. 5" regarding selection of overseas AE as the tested party.

Analysis:
1. The applicant filed a miscellaneous application under Sec. 254(2) of the Income Tax Act, arising from the Tribunal's order in ITA No. 674/Mum/2017 dated 21.03.2018. The Authorized Representative (A.R) for the assessee highlighted that the appeal was against the final assessment order passed by the Assessing Officer (A.O) following directions of the Dispute Resolution Panel (DRP) for the assessment year 2012-13. The A.R contended that the Tribunal's order inadvertently omitted to adjudicate on "Ground of appeal No. 5" related to selecting the overseas AE as the tested party, despite both parties raising contentions on this issue during the appeal process.

2. The Departmental Representative (D.R) did not dispute the A.R's submissions. Upon review, the Tribunal acknowledged the oversight in not addressing the specific ground of appeal regarding the selection of the overseas AE as the tested party. The Tribunal found that the issue was referred to in the order but was not followed by a detailed adjudication. Consequently, the Tribunal deemed this omission as a glaring mistake apparent from the record, making the order amenable for rectification under Sec. 254(2) of the Act. The Tribunal recalled its earlier order for the limited purpose of adjudicating "Ground of appeal No. 5" concerning the selection of the overseas AE as the tested party for the assessment year 2012-13.

In conclusion, the Tribunal allowed the miscellaneous application filed by the assessee, recalling the previous order to address the specific issue of selecting the overseas AE as the tested party. The judgment emphasized rectifying the oversight in adjudicating on this crucial ground of appeal, ensuring a comprehensive review of all relevant contentions raised during the appeal process for a fair and just resolution.