9911796707
TMI Blog2014 (4) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... doubt about the reliability of the data/details, then it would have been raised before the TPO/AO - the issue has been remanded for considering the segmental results and related party transactions in ITES segment, then there was no substance in the submission of the assessee – Decided against Assessee. Comparability of Infosys and Wipro – High turnover – Held that:- The finding has been given on examination and analysis of the facts and the assessee has not pointed out in the miscellaneous application any factual mistake in the facts which are considered by the Tribunal while giving the finding – Relying upon H.A. Shah & Co. v. CIT [1955 (9) TMI 53 - BOMBAY HIGH COURT] - if while deciding a case the First Tribunal did not have a particular material before it and if the second Tribunal is satisfied that if those material facts have been taken into consideration the decision of first Tribunal would have been different, it would justify the second Tribunal in not adhering to the decision of the first Tribunal – thus, when the issue has been decided after considering certain vital facts which were not before the Co-ordinate Benches relied upon by assessee then taking a different vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 254(2) which amounts to reversal of order passed after discussing all facts and statutory provisions in detail – Decided against Assessee. - ITA No. 4547/Mum/2012 - - - Dated:- 13-11-2013 - Rajendra Singh And Vijay Pal Rao, JJ. For the Appellant : F.V. Irani For the Respondent : A.K. Jain ORDER:- PER : VIJAY PAL RAO This Miscellaneous application by the assessee is in respect of the order of this Tribunal dated 01.3.2013 whereby the appeal of the assessee was disposed off for the assessment year 2007-08. 2. The assessee has stated in the miscellaneous application that various mistakes crept in the impugned order are to be rectified. The first grievance as raised in the miscellaneous application is regarding the finding of this Tribunal on the issue of disallowance of deduction under section 10A of the Act. The ld. Counsel for the assessee has submitted that the AO has disallowed the deduction under section 10A in respect of Vikroli Unit whereas for the assessment year 2000-01 the deduction under section 10A was allowed by the AO. The ld. AR has further submitted that even in the subsequent assessment years deduction under section 10A was allowed up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of deduction under section 10A which can be rectified under section 254(2). 3.1 We have considered the rival submissions and carefully gone through the records. The grievance and submission of the assessee in the miscellaneous application is against remanding the matter to the record of the AO for examination of the aspect of consolidation of two existing units as observed by the ld. CIT(A). It is pertinent to note that the submission which has been made in the proceedings of the miscellaneous application have already been considered by the Tribunal while deciding the appeal of the assessee by the impugned order. The assessee's grievance is against the finding of the Tribunal and not against the factual mistake apparent on record in the order. As far as the issue of eligibility of deduction under section 10A of the Act, the Tribunal has principally agreed with the contention of the assessee that once the claim of the assessee was allowed in the first year, then it cannot be denied in the subsequent year if there is no change in the facts and circumstances. The decisions relied upon by the assessee have been duly considered in the impugned order. For the assessment year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Tribunal in the AY 2006-07; and the other one which has been brought out by the CIT(A) for the first time during the year under consideration, the matter is remanded to the records of the Assessing Officer for examination, verification and then decide the issue as per law." 3.2 It is clear from the concluding findings on the issue that the Tribunal has accepted the contention of the assessee that in case there is no change in the facts and circumstances subsequent to the first year, which could have rendered the assessee ineligible for deduction under section 10A, the claim of the assessee can not be denied in the subsequent assessment year when the same is accepted in the first assessment year. The issue was remanded to the record of the AO only on two aspects one, as it was already set aside by the Tribunal in the assessment year 2006-07 regarding apportionment of turnover expenses of the units and another, formation of the consolidated unit by merging of two units during the year under consideration as pointed out by the ld. CIT(A). Since this aspect was brought on record for the first time in the year under consideration and was not examined by the CIT(A), therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 60.09 crores is only from IT enabled services and not from software. The TPO has considered the revenue derived from IT enabled services, therefore, when segmental results are considered by the TPO which is 96% of the total revenue pertains to the IT enable services then this company is functionally comparable to the assessee. 4.1 In rebuttal the ld. AR has submitted that in Schedule-VIII the revenue of Rs. 60.09 crores has been shown as derived from information technology enabled services and software services and no further division is given in Schedule-VIII. The details produced by the ld. DR are not reliable and cannot be considered. 4.2 We have considered the rival submissions and carefully perused the relevant record. The Tribunal has given the finding on this comparable in para-27 to 27.2 as under : "27. We have considered the rival submissions and carefully perused the relevant material on record. Though, the TPO has taken the entity level results in the case of this comparable; however, the ld DR has brought the details, which show that the income from ITES is about 96% of the total revenue. Therefore, as far as the functional comparability of this company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal has not considered the objection of the assessee on brand value of Infosys and Wipro which make them different and non-comparable to the assessee. On the other hand the ld. DR has submitted that during the hearing the ld. AR of the assessee has heavily relied upon the case of Capital IQ Systems only which is on the issue of high turnover. The ld. DR has submitted that at the time of hearing the decision of the Delhi Bench in case of Actis Advisers ITA No.4654/del./2010 was relied upon wherein these two companies were considered as good comparable by rejecting the objections of the assessee on the issue of high turnover and brand value. 5.1 We have considered the rival submissions and carefully gone through the relevant record. As regards high turnover objection the Tribunal has considered this aspect in the light of the new facts brought on record by the ld. DR wherein the details clearly show that the difference in turnover has no direct relation with the margin. Even in the issue of turnover filter there are decisions of the Tribunal having divergent view which has been duly considered by the Tribunal in the case of the assessee and thereafter by considering the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; and inclusion of Satyam Computers Services Ltd. in spite of the fact that its data is not reliable as publicly known. On the basis of these arguments, the DRP excluded the case of Satyam Computers Services Ltd., thereby reducing the arm's length margin to 25.6 Io. It is argued that the case of the assessee is not comparable with Infosys Technologies Ltd., the reason being that the later is giant in the area of development of software and it assumes all risks, leading to higher profit. On the other hand, the assessee is a captive unit of its parent company in the USA and it assumes only limited currency risk. Having considered these points, we are of the view that the case of the aforesaid Infosys and the assessee are not comparable at all as seen from the financial data etc. of the two companies mentioned earlier in the order. Therefore, we are of the view that this case is required to be excluded." Similar view has also been expressed by the Hyderabad Bench of the Tribunal in the case of Trinity Advanced Labs P. Ltd. (supra). In the case of Genesys Integrating India P. Ltd. (supra), the Bangalore Bench of the Tribunal has observed in the following manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 1 crore to Rs. 200 crore alone can be considered as comparable, in the case of the assessee." 47.2 In the case of Genesys Integrating Systems India P Ltd (supra), the Tribunal has made a classification of company is having turnover of Rs. 1 crore to Rs 200 crores as the comparable range of size of companies and further from Rs. 200 crores to Rs. 2000 crores as another slab of turnover. This classification is based on dun Bradstreet having given different ranges of size of companies i.e. large, medium and smaller. Such classification by dun Bradstreet was not made in the context of comparables under T P Regulations. 47.3 It is pertinent to note that as per this classification of the company on the basis of turnover from Rs. 1 crore to Rs. 200 crores, an entity having Rs. 1 crore can be compared with an entity having Rs. 200 crores turnover ; but at the same time, an entity having Rs. 200 crores turnover cannot be compared with the entity having Rs. 201 crores turnover. Thus, this classification gives unrealistic result as far as the comparability of two entities having difference of Rs. one crore only cannot be compared. In our view for the purpose of comparing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34.93 53.36 19. ICRA Techno Analyties Ltd. (Seg.) 12.24 72.32 20. Eclerx Services Ltd. 90.43 86.2 31.29 Upto 100 21. Allsec Technology Ltd. 27.31 113.27 31.10 Upto 120 22. Aditya Birla Minacs 11.98 197.06 30.23 Upto 200 23. HCl Comnet (seg) 44.99 260.18 30.87 Upto 300 24. Infosys BPO Ltd. 28.78 649.56 30.78 Upto 650 25. Wipro Ltd. (Seg.) 29.7 939.77 30.74 Upto 940 47.5 It is manifest from this details and the comparative chart that there is no relation between the turnover and margin of an entity as it shows that the highest margin of the entity having Rs.50 crores turnover and the lowest margin in case of the turnover upto Rs. 200 crores. It makes further clear that there is not much difference in the margin of the various entities having turnover upto Rs. 940 crores as the average margin of the entities upto the turnover of Rs.50 crores is 31.36%; whereas th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point that if the comparables proposed to be taken into consideration by the TPO are having an abnormal differences of turnover in comparison to the turnover of the assessee, and if it is apparent due to such abnormal difference in the turnover, the operating profits of the comparables is got distorted then in such a case, those comparables should be excluded from the list of the ALP. 15. In the case in hand, the assessee raised these objections only because some of the comparables are having high profit and also high difference in the turnover and not because of the high or low turnover has influenced the operating margin of the comparables. All the objections and contentions raised by the assessee in respect of this issue are general in nature and no specific fact has been brought on record to show that due to the difference in turnover the comparables become non-comparables. The assessee has not demonstrated as to how the difference in the turnover has influenced the result of the comparables. It is accepted economic principles and commercial practice that in highly competitive market condition, one can survive and sustain only by keeping low margin but high turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of peculiar, relevant and vital facts brought before the Tribunal which were not available in the case relied upon by the Ld. Authorized Representative. The Third Member decision in the case of Napar Drugs (supra), after considering the various decisions of Hon'ble Supreme Court and Hon'ble High Court on the point has concluded in pare 49 to 51 as under: 49. I have in the foregoing paragraphs briefly enumerated the judgments of Hon'ble High Courts and Supreme Court where they are directly concerned with the question of the nature and scope of one decision of the Tribunal as a precedent on subsequent Bench of the Tribunal deciding the similar issue. There is unanimity and direct authority of Hon'ble Supreme Court in more than one judgments that in income-tax matters the decision of one Bench of the Tribunal does not constitute a binding precedent on subsequent Bench of the Tribunal deciding upon the same or similar issues or facts. There is, however, a strong undercurrent in judicial thinking that where there is only difference of opinion on the same facts and the same aspects, the subsequent Bench ought not to proceed to decide the matter on its own contrary to the earlie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The Tribunal by its order dt. 29th Jan., 1952 held that the disruption of the family took place as on 16th April, 1938. For asst. yr. 1941-42 the Department made the assessment holding that Hiralal represented the HUF in the firm. As a result of the acceptance of the disruption of the HUF on an earlier date, the Tribunal held that Mr. Hira Lal was only minor's trustee. For asst. yrs. 1942-43, 1943-44 and 1944-45, the Tribunal went into the question in much greater detail and held that Hira Lal was a partner in his own right. Thereafter at the instance of the assessee, the following question was referred to Hon'ble Bombay High Court for their opinion : "Whether in the circumstances of the case, the Tribunal was justified in law in departing from its previous finding that Hiralal was trustee of the minor Vasantlal." A large number of authorities were cited before the Hon'ble Bombay High Court. The Hon'ble Bombay High Court referred to the judgment in the case of IRC vs. Sleath 17 Tax Cases 149 at 163. "The assessment is final and conclusive between the parties only in relation to the assessment for the particular year for which it is made. No doubt, a decision reache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essential that there must be some fresh facts which must be placed before the second Tribunal which were not placed before the first Tribunal. If the first Tribunal failed to take into consideration material facts, facts which had a considerable bearing upon the ultimate decision, and if the second Tribunal was satisfied that the decision was arrived at because of the failure to take into consideration those material facts and that if these material facts had been taken into consideration the decision would have been different, then the second Tribunal would be in the same position to revise the earlier decision as if fresh facts had been placed before it. On principle there is not much difference between fresh facts being placed before the second and the second Tribunal taking into consideration certain material facts which the first Tribunal failed to take into consideration. It may be said that even though the first Tribunal may take into consideration all the facts, still its decision may be so erroneous as to justify the subsequent Tribunal in not adhering to that decision. In a case like this, which indeed must be an extreme case, it could be said that the decision of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation when it became known that there were a large number of companies similarly placed. She found that it was too much of a coincidence that in the case of all the companies floated by the searched person, all the shareholders at the same point of time were in need of dire funds and all of them approached the searched person and left signed blank documents. In other words according to the Hon'ble JM, once it was realized that in the peculiar facts and circumstances of the case the assessee was not alone but was one of many, the whole complexion of the facts and circumstances of the case became altogether different. I see considerable force in this reasoning. The Tribunal has decided the appeals on identical facts in the case of Real Overseas (P) Ltd.; Makhni Tyagi (P) Ltd.; Indradhan Agro Products Ltd.; (supra) Akriti Media (P) Ltd. and Garg Polymers (P) Ltd., each in isolation without examining the totality of the picture that emerges once all these cases are considered as pieces of a large mosaic. In other words, what the learned AM considered to be the strength of the case of the assessee, precisely the same has been considered by the learned JM, to be the weakness in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in respect of comparable Maple-Esolution Ltd. The ld. AR of the assessee has referred to para 51.1 at page-65 of the impugned order and submitted that the objection of the assessee was rejected by the Tribunal on the ground that the assessee itself has selected this company as comparable. In support of his contention he has relied upon the decision of the Special Bench in the case of Dy. CIT v. Quark systems (P.) Ltd. [2010] 38 SOT 307 (Chd.) and submitted that the Tribunal accepted the assessee's contention for exclusion of certain cases which were wrongly included in the TP study but were not comparable. On the other hand the ld. DR has submitted that the Tribunal has decided the issue of comparability first in para .51 and then rejected the objection of the assessee in para 51.1. Therefore there is no mistake in para 51.1 6.1 We have considered the rival submissions and carefully perused the relevant records. The issue has been considered and decided by the Tribunal in para 51 to 51.2 at page 65 and 66 of the impugned order as under : "51 We have considered the rival submissions and relevant material on record. The first objection raised by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said company should be excluded from the comparables. However, if the merger of the two functionally similar companies took place then the event of merger itself cannot be taken a factor for exclusion of the said comparable.. Accordingly, we direct the AO/TPO to verify this fact and accordingly decide the comparability of this company namely Accentia Technologies Ltd." 6.2 The objection of the assessee against the inclusion of Maple Esolutions is the allegation of fraud against the director of the said company. As it is clear from the finding of the Tribunal in para-51 the said objection was found not relevant for the business of these companies and for the year under consideration. Once the ground of allegation of fraud against directors was not accepted then the finding of the Tribunal in para-51 to 51.2 has to be read as a whole. The observation of the Tribunal in para 51.1 is based on the finding in para-51 and therefore, para 51.1 can not be read in isolation. Accordingly we do not find any substance in the submissions of the assessee on this point. 7. The next error alleged by the assessee is regarding the finding of the Tribunal in respect of comparability of Eclerx Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther examination would be needed to understand the reasons for such extreme results. If some reasons are detected which indicate a defect in the comparability or exceptional conditions for such an extreme results, then only the case may be excluded from the proposed comparables. The concluding remarks given under the OECD TP guidelines in para 3.65 3.66 are as under: 3.65 Generally speaking, a loss-making uncontrolled transaction should trigger further investigation in order to establish whether or not it can be a comparable. Circumstances in which loss-making transactions! enterprises should be excluded from the list of comparables include cases where losses do not reflect normal business conditions, and where the losses incurred by third parties reflect a level of risks that is not comparable to the one assumed by the taxpayer in its controlled transactions. Loss-making comparables that satisfy the comparability analysis should not however be rejected on the sole basis that they suffer losses. 3.66 A similar investigation should be undertaken for potential comparables returning abnormally large profits relative to other potential comparables. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y so, because profit is not a factor in itself, but consequence of the effect of various factors. Only if the higher or lower profit rate results on account of the effect of factors given in rule 10B(2) read with sub-rule (3), that such case shall merit omission. If however such extreme profit rate is achieved because of factors other than those given in the rule, then such case would continue to find its place in the list of comparables." 7.2 Once the issue has been decided by the Tribunal by holding that the company providing data processing and data analysis service is similar to the services of the assessee then it becomes irrelevant whether the assessee has raised the objection before the authorities below or not. Accordingly we do not find any merit in the submission of the assessee on this issue. 8. The next mistake alleged by the assessee is regarding the finding in respect of comparability of Mold Tex Technologies Ltd. (MTL). The ld. AR for the assessee has submitted that the assessee challenged the selection of MTL on three grounds viz. (a) the company earns super normal profits; (b) the company is engaged in engineering services which is functionally different from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection regarding super normal profit is concerned, this objection cannot be a sole ground for rejection of a comparable in view of our findings while discussing the comparable Eclerx Services P Ltd in para 34.4 52.1 As regards the extra ordinary events of merger, we have decided the identical issue while discussing the comparable Accentia Technologies Ltd in paras 17 to 18.3. Accordingly, we direct the Assessing Officer/TPO to verify this fact and accordingly decide the comparability of the company." 8.3 Since the issue of super normal profits has been decide in para 34.4 while considering comparability of Eclerx Services Ltd. therefore, no detailed finding was given for the sake of brevity and to avoid duplication. As regards the functional comparability when the fact of merger was not examined by the authorities below as it was not raised, therefore, the TPO was directed to verify this fact and accordingly decide the comparability of the company. It is pertinent to note that functional comparability can be determined only after issue of merger is verified and decided, therefore, the Tribunal did not propose to go into the issue of comparability as it was subject to ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious threshold limits in series of decisions. 21.1 In the case of Avaya India P Ltd (supra), the Tribunal in para 18 has opined as under: 18. We have carefully considered the rival submissions in the light of the material placed before us. So far as it relates to applying the filter for rejection of comparable companies having related party transactions as a percentage of sales more than 15%, we uphold the said filter. So as it relates to another filter rejecting the comparables whose current year financial data is not available we find that the said filter has been upheld by the DRP by following the decision of ITAT Delhi Bench in the case of Customer Services P Ltd v. ACIT 30 SOT 486 in which it has been held that commissioner of Income Tax (Appeals) was fully justified in holding that main rule of sec. 10B(4) was applicable to the facts of the assessee's case and it was mandatory on the part of the TPO to use data relating to financial year 2002-03 in which the international transactions were admittedly enter into by the assessee with its associate enterprises. Therefore, the second filter is also upheld." 21.2 The Tribunal has upheld the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but laid down a range from 10 to 15% related party transaction of total revenue for considering the entity as an uncontrolled comparable. 22.4 In the case of Philips Software Centre Pvt Ltd (supra), the Tribunal in para 5.71 (vii) has observed that for the purpose of the comparability companies with even a single rupee of transactions with AE cannot be considered as comparable. 22.5 In the case of CRM Services India P Ltd (Supra), the Tribunal has reaffirmed the view as taken in the case of Sony India (supra) and held that the tolerance limit of related party transactions would be in the vicinity of 10 to 15%. 22.6 In the case of Benetton India P Ltd (supra), a similar view was taken by the Tribunal that the related party transactions should not exceed 10 to 15% of the total revenue. 22.7 On the contrary, the Tribunal in the case of Actis Advisers (supra) has held that an entity can be taken as uncontrolled, if its related party transaction do not exceed 25% of the total revenue. This view of the Tribunal is based upon the criteria enumerated u/s 92A(2) of the IT Act wherein expression of associate Enterprises has been defined, if certain conditions and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he total revenue. 22.10 The relaxation upto 20% is purely with a view to make it possible that a larger number of entities are taken as comparable so that the ALP so determined should be based on a broad based and technically represents price in the free market. In a extreme case where only one or few comparables are available, then an entity having related party transactions not exceeding 25% of the total revenue can be considered so that the ALP should be determined having comparison broad based, though this extreme limit of 25% can be considered only in exceptional cases. 22.11 In the case in hand, as it is evident that the TPO has found sufficient number of comparables and finally took 30 companies as comparables; therefore, this case does not fall under the category of exceptional cases where criteria of related party transactions can be relaxed more than 15% of the total revenue of the entity. Hence, we are of the considered opinion that in the case in hand, when there is no shortage of comparables, an entity can be considered as uncontrolled, if the related party transaction do not exceed 15% of the total revenue.' 8.7 It is clear from the finding of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court that the Tribunal being final authority on the question of fact was bound to consider all evidence and arguments raised by the parties. 8.11 We have considered the rival submissions and carefully perused the relevant records. The Tribunal has considered and decided the issue in para-14 to 14.7 as under : "14 We have considered the rival submissions and carefully gone through the relevant material as well as the provisions relating to the Transfer Pricing Regulations. As per the provisions of sec. 92CA(3), the TPO has jurisdiction/power to gather and consider all relevant material and information apart from the evidence, information and documents produced by the assessee as required u/s 92D(3) to determine the ALP in relation to the international transaction. 14.1 Sub sec. (7) of sec 92CA empowers the TPO for the purpose of determining the ALP to exercise any of the powers specified in clause (a) to (d) of sub-sec. (1) of sec 132 or sub-sec. (6) of sec 133 or 133A. Thus, under the TP regulations, there is no embargo on the powers of the TPO in carrying out fresh search for gathering more relevant information, documents etc., while determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le number of comparables which can give an adequate and proper representation of the price prevailing in open market in the said industry, business, trade etc., to which the comparables and international transactions belong. 14.5 In the case of Haworth India P Ltd, (supra) the Tribunal has observed that only one comparable was left which was selected by the assessee itself in its TP study and the TPO did not choose to carry out a fresh search, then the said comparable can be taken to compute the ALP. The relevant part of the Tribunal's observation in para 77 is as under: 77. Now coming to the case Law relied upon by Id. DR which convey that only one comparable is sufficient and it has been held by the Tribunal in other cases that arm length price can be worked out even on the basis of one comparable. In the case of Vedaris Technology (P.) Ltd. v. ACIT (supra) 20 comparables were short listed and mean margin was worked out at 16.585% and out of those only one comparable was Left namely Sophia Software Ltd. on the basis of which the arm Length price was determined. Here, it is the case of Ld. AR that the said case is not applicable to assessee's case as in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws in the other cases because the issue and facts and circumstances in the cases relied upon by the assessee are entirely different. In those cases the TPO rejected the other comparables selected by the assessee except one and ALP was determined on the basis of one comparable selected by the assessee. Therefore, when the TPO itself did not choose to carryout further search then issue of justification of TPO did not arise before the Tribunal. In the case in hand the assessee raised the question about the jurisdiction of TPO to carryout fresh search which has been considered and decided after considering the relevant provisions, decisions as well as arguments of the assessee. Therefore, we do not find any substance in the contention of the assessee. The decision relied upon by the ld. AR in the present proceedings are undisputedly on the point of considering the evidences and necessary facts before the Tribunal. Therefore, there is no quarrel as regards the decision of Hon'ble Supreme Court relied upon by the assessee but it is not the case of the assessee that Tribunal has ignored and any fact or evidence while passing the impugned order. 8.13 The assessee has also objected agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the contention and averments made in the miscellaneous application as well as arguments of the Ld. AR are directed to criticize the impugned order of the Tribunal which does not fall in the scope of section 254(2). If the assessee has any grievance against the impugned order, the proper and efficacious remedy is to challenge the same in appeal and not to challenge the finding of the Tribunal in the proceedings under section 254(2). Thus the primary purpose of the present miscellaneous application is an attempt to criticize the impugned order of the Tribunal without pointing out any obvious, patent or apparent mistake in the order which can be rectified under section 254(2). The assessee has expressed its grievance against the order and not pointed out any error or mistake apparent. Further, the grievance of the assessee is against reasoning and finding of the Tribunal on merits. Thus it is apparent that the miscellaneous application is a deliberate attempt to attack and criticize the Tribunal and its order. We take a serious view of the conduct of the assessee in filing frivolous miscellaneous application in the garb of rectification of mistake which is highly improper and con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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