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TMI Blog2019 (11) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order dated 16.06.2017 was passed by the tribunal. It is now well settled that scope of tribunal to rectify its own appellate order , within provisions of Section 254(2) of the 1961 Act is limited to rectifying mistakes which are apparent from records. The tribunal has no powers to review its own decision within limited scope of Section 254(2) of the 1961 Act. The assessee vide this MA has raised large number of averments and contentions even on merits of the issue which even go to extent of hair splitting the order by adopting too hyper technical approach in an desperate attempt to somehow wriggle out of the well reasoned tribunal order dated 16.06.2017 wherein the said order could be recalled . Before we proceed further, it is very important and crucial at this stage to refer to the conduct of the assessee itself in dealing with various authorities during the course of assessment/appellate proceedings. The ay under consideration is ay: 2009-10 for which previous year was 2008-09. The assessee was called upon to file various agreements it entered into with its clients during the year under consideration which was very crucial to adjudicate dispute between rival parties. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have filed before us as directed by us, firstly agreement with its clients for media planning, conceptualisation of advertisement, creating and designing art work, film slides and final editing of the advertisement, secondly agreements with clients related to media buying for release of advertisement which will also entail submission of purchase orders by client to the assessee for actual release of advertisement ( these agreements were filed as we see later in this order in the manner it was filed), thirdly agreement with media houses for purchase of advertisement slots , fourthly agreements with various professionals , models , writers , directors , location hire, studio hire , props, acquisition etc. for development and designing of advertisement for clients such as film, art work etc. At the adjourned hearing , the assessee filed compilation / paper book page 730-758 consisting of few agreements of type "second‟ as above with clients for release of advertisements and that too without submitting actual purchase orders released by clients in its favours. Incidentally none of these agreement so filed before the Bench were for the relevant period under consideration as were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Incidentally none of the agreement so submitted was for the relevant period under consideration as were required by the Bench and were pertaining to the period subsequent to the relevant previous year. The assessee has categorically stated that it does not have any agreement with clients for relevant period under instant appeal while facts as emanating from TPSR(page 66/pb) is that the assessee duly entered into agreements with its clients for media planning and media buying.. The assessee did not file its agreements with various agencies for booking/ purchasing advertisement slots despite being asked by the Bench nor it filed agreement with clients for media planning as well agreements for execution of media planning leading to development of advertisement were not filed. The purchase orders for release of advertisement issued by clients are also not filed. Sufficient opportunities had been granted to the assessee by all authorities including us but the assessee has chosen not to come forward with relevant evidences to support its own contentions. The Bench even gave further chance to the assessee to come clean and asked the assessee to given break up of gross revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrate the desperation of the assessee to somehow get the well reasoned detailed order dated 16.06.2017 passed by the tribunal recalled under the garb of this MA. The fact of the matter is that these agreements were entered into by the assessee to undertake various transactions during the impugned ay and in order to prove its contentions that only net revenue is to be considered while computing ALP and the so called claimed passed through costs are to be reduced from gross revenue to arrive at net revenue which is to be considered for determining ALP, the onus is on the assessee to produce relevant evidences to support its contentions. The said onus never get discharged. The next attempt is made in this MA to show that tribunal order dated 16.06.2017 was passed beyond 90 days and hence this order needed to be recalled. It is admitted by the assessee that the aforesaid appellate order dated 16.06.2017 passed by the tribunal was received on 25.07.2017. The assessee cited decision of Hon‟ble Bombay High Court in the case of Shivsagar Veg. Restaurant v. ACIT (2009) 317 ITR 433 and decision in the case of Otters Club v.DIT (E) ( WP no. 1889 of 2016). The decision of tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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