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TMI Blog2020 (12) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... s are not apparent from record, we are not able to appreciate this contention of the assessee and accordingly reject the same. It is the submission of the assessee that the Tribunal has committed an error in not admitting the additional grounds. However, we notice that the Tribunal has taken a particular view on the above matter. Hence, the same cannot be interfered with u/s 254(2) of the Act. - M.P. No.11/Bang/2019 (Arising out of IT(TP)A No.8/Bang/2014) - - - Dated:- 18-12-2020 - Shri B. R. Baskaran, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri Ajit Tolani, A.R. For the Respondent : Shri Kannan Narayanan, D.R. ORDER PER B.R. BASKARAN, ACCOUNTANT MEMBER: The assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication of a ground or part thereof in the order constitutes a clear mistake apparent from the record in the impugned ITAT order in terms of sec. 254(2). ii) Even while adjudicating on the specific issue of Provision written back, the Hon'ble Tribunal in Para 10 has held that- the issue of write back relates to business taken over by the assessee and therefore any profit arising out of business taken by the assessee constitutes capital receipts and does not form part of operating income for calculating operating margin of the assessee. iii) It is submitted that there are three parts of provision written back -a) Provision for sales commitment which are written back and b) Provision of warranty written back (i.e. excess wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which is reproduced as follows - 2(h) That on the facts and in the circumstances of the case the ld. CIT(A) erred in- upholding the erroneous computation of arithmetic mean margin of the comparable companies 2(i) That on the facts and in the circumstances of the case the ld. CIT(A) erred in-upholding the erroneous computation of the operating margin (Operating profit/Sales) of the comparable companies. The above grounds have been discussed in the order of the Hon'ble Tribunal (in para 9) wherein this particular ground of appeal has been dismissed on the reason that this issue is already subject matter of petition u/s. 154 before the TPO vide application dtd. 27/2/12. The Hon'ble bench failed to appreciate that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the significant expenses by the applicant towards Marketing, Advertisement And Sales promotion activities due to initial year of its distribution operation. The Hon'ble Tribunal (in para no.11)while dismissing them has held that additional grounds cannot be admitted for reason that these issues require to be adjudicated based on factual issue and not question of law. It is submitted that in the application for the above additional grounds the Assessee has given detailed justification supported with catena of judicial precedents justifying consideration of Working capital adjustment towards AMP (Advertisement, Marketing and Promotion expenses) while calculating the operating margins of tested party or corresponding comparable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rused the record. The assessee has pointed out the alleged mistakes in clauses (i) to (vi) in the miscellaneous petition. It is a well settled proposition of law that the Tribunal, under the powers given to it u/s 254(2) of the Act can rectify only mistakes which are apparent from record. Under the garb of rectification, the Tribunal is not entitled to review its order. The Hon ble Supreme Court, in the case of T.S Balaram Vs. Volkart Brothers (1971 AIR 2204) has explained scope of sec. 154 of the Act as under:- A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably two opinions.....An error which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surgical Limited. We notice that the assessee has not raised any ground before the Tribunal with regard to the above said comparable company. It is only stated that the assessee has argued before the Tribunal on the above said comparable. Since the above facts are not apparent from record, we are not able to appreciate this contention of the assessee and accordingly reject the same. 7. In clause (vii), it is stated that the Tribunal has refused to admit two additional grounds. It is further stated that the Tribunal has observed in paragraph 11 of its order as under with regard to the additional grounds:- The additional grounds cannot be admitted for the reason that these issues require to be adjudicated based on factual issue and n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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