2019 (3) TMI 1823 - AT - Income Tax

TP Adjustment - Characterization of distribution fee - Royalty or not? - HELD THAT - As the order of the ITAT which was followed by the ITAT in the present order has been directed by the Hon ble Judicial High Court to be heard afresh by the ITAT for the adjudication on the issue respectfully following the above we also recall this order of the ITAT 2018 (5) TMI 2026 - ITAT MUMBAI The registry is directed to fix the case for hearing on the same date on which the earlier appeal for AY 2011-12 is fixed pursuant to the aforesaid direction of the Honourable jurisdictional High Court.

Summary

Issues:
Recall of tribunal order based on availability of facts for adjudication, High Court reversal of miscellaneous application rejection, precedence of recall orders.

Analysis:
The judgment pertains to a miscellaneous application seeking the recall of the tribunal's order in a specific case. The assessee requested the recall based on the availability of all necessary facts for adjudication, which were also present before the tribunal in an earlier year when the matter was remanded. The counsel argued that a High Court decision reversed the rejection of a similar miscellaneous application, emphasizing that when all facts are available, the tribunal should decide the issue itself. Citing a precedent from the Delhi High Court, the counsel contended that recall of the order was justified in such circumstances.

Upon careful consideration, the tribunal found merit in the counsel's submission, noting the direction from the High Court to hear the matter afresh for adjudication. Consequently, the tribunal decided to recall its earlier order dated 02.05.2018. The registry was instructed to schedule the case for hearing on the same date as the earlier appeal, following the High Court's directive. The Departmental Representative concurred with this decision, leading to the allowance of the Miscellaneous Application.

In conclusion, the tribunal allowed the Miscellaneous Application for the recall of its order, aligning with the jurisdictional High Court's direction to reexamine the matter in light of the available facts. The decision underscores the importance of ensuring that all relevant information is considered before reaching a final judgment, as supported by legal precedents and higher court rulings.