2022 (1) TMI 1390 - AT - Income Tax

Rectification application - comparable selection for TP Adjustment - HELD THAT - Exclusion of Allsec technologies the revenue ground is misplaced as TPO has himself excluded it from final comparable. The other submission that the order should be modified to confirm exclusion of Axis Integrated Systems is not sustainable. The reading of the above order shows that the ITAT has not specifically dealt with the revenue ground relating to Axis Integrated Systems Ltd, raised by revenue in ground no 36. Hence, the Ld. Counsel of the assessee submission that exclusion of Axis Integrated Systems Ltd. is also adjudicated by the Tribunal is not correct. Since, this ground raised by the revenue has not been adjudicated, we recall ground No. 36 of revenue appeal for fresh adjudication. This miscellaneous application is partly allowed. Apparent mistake rectifiable u/s. 254(2) - non adjudication of additional ground - HELD THAT - As we note that the mistake apparent from the record has crept in the order of this Tribunal inasmuch as the aforesaid additional ground was not adjudicated by the Tribunal. Hence, there is a mistake apparent from the record. However in an MA, the ground on merits cannot be adjudicated Hence, the order can only be recalled for the limited purpose of adjudicating this additional ground which had remained unadjudicated. Ld. DR has no objection with regard to this miscellaneous application inasmuch as, the recall will be only to adjudicate the issue which had by mistake remained unadjudciated. Accordingly, we recall the aforesaid order for limited purpose of adjudication of the aforesaid additional ground, which has remained to be adjudicated.

Summary

Issues Involved:
1. Rectification of apparent mistakes in the ITAT order dated 10.11.2020.
2. Inclusion and exclusion of specific comparables in the Revenue's appeal.
3. Adjudication of additional grounds in the Assessee's appeal.

Detailed Analysis:

Issue 1: Rectification of Apparent Mistakes in the ITAT Order
The assessee filed miscellaneous applications to rectify apparent mistakes in the ITAT order dated 10.11.2020. The primary contention was that certain grounds and findings were either omitted or inaccurately recorded.

Issue 2: Inclusion and Exclusion of Specific Comparables
The Revenue's appeal included grounds related to the inclusion and exclusion of specific comparables for benchmarking Business Support Services (BSS) and Management Support Services (MSS). The grounds were as follows:
- Ground No. 35: Inclusion of Allsec Technologies Ltd.
- Ground No. 36: Exclusion of Axis Integrated Systems Ltd.
- Ground No. 37: Inclusion of Empire Industries Ltd.
- Ground No. 38: Exclusion of BVG India Ltd.

The ITAT noted that these grounds were related to Ground No. 9 in the Assessee's appeal, which dealt with the determination of the arm's length mark-up for BSS. The Tribunal had initially dismissed these grounds but acknowledged certain factual inaccuracies and omissions in its order. Specifically:
- Ground No. 35: The ITAT incorrectly stated that Allsec Technologies was excluded by the TPO, which was factually incorrect as the Revenue sought its exclusion.
- Ground No. 36: The ITAT did not explicitly mention Axis Integrated Systems Ltd. in its findings.
- Ground No. 37 and 38: The ITAT did not provide specific findings on Empire Industries Ltd. and BVG India Ltd.

The Tribunal rectified these errors by modifying the relevant paragraphs to include the omitted grounds and correct the factual inaccuracies. Ground No. 36 was recalled for fresh adjudication as it was not specifically dealt with in the original order.

Issue 3: Adjudication of Additional Grounds in the Assessee's Appeal
The Assessee's appeal included an additional ground (Ground No. 6) related to the claim of long-term capital loss on the sale of equity and preference shares to its subsidiary, which was inadvertently not claimed in the return of income. The Tribunal acknowledged that this ground was not adjudicated in the original order and recalled the order for the limited purpose of adjudicating this additional ground.

Conclusion:
The ITAT partially allowed the miscellaneous applications by the assessee, rectifying the apparent mistakes in the original order, including the omitted grounds and correcting factual inaccuracies. The Tribunal also recalled the order for the limited purpose of adjudicating the additional ground related to the long-term capital loss claim. The rectifications and recall ensure that the issues are comprehensively addressed, maintaining the accuracy and clarity of the Tribunal's findings.