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TMI Blog2021 (10) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The petitioner s counsel, inadvertently, failed to bring to the notice of the Tribunal, that the issues raised in ground nos. 6 and 7 of the appeal were outstanding, and that they needed to be adjudicated upon. Thus, having regard to the aforesaid, we are of the view that the impugned order, passed by the Tribunal in the miscellaneous application deserves to be set aside. - W.P.(C) 11330/2021 - - - Dated:- 22-10-2021 - HON'BLE MR. JUSTICE RAJIV SHAKDHER AND HON'BLE MR. JUSTICE TALWANT SINGH Petitioner Through: Mr. Vivek Sarin and Mr. Dibya Prashant Singh, Advocates Respondent Through: Mr. Kunal Sharma, Advocate. RAJIV SHAKDHER, J. (ORAL) 1. On the previous date i.e., 11.10.2021, we had passed the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not a fresh claim on account of omission on the part of the Appellant. 7.2 Further, the Hon ble DRP has grossly omitted in addressing the objection raised by the appellant on the aforesaid action of the Ld. AO while issuing directions to the Ld. AO. 3. The record shows that, the assessee/petitioner withdrew its appeal, as the issue pertaining to transfer pricing adjustment, concerning the assessment year (AY) in issue i.e., AY 2011-2012 stood resolved. 3.1 The resolution took place as the assessee/petitioner had entered into an Advance Pricing Agreement with the respondent/revenue. 4. Mr. Vivek Sarin, who appears on behalf of the assessee/petitioner, in support of his plea, says that, the Tribunal could have exercised its po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal would consist of an order made under section 254(1) of the Act or it could be an order made under sub-section (1) as amended by an order under sub-section (2) of section 254 of the Act; (c) The power of rectification is to be exercised to remove an error or correct a mistake and not for disturbing finality, the fundamental principle being, that power of rectification is for justice and fair play; (d) That power of rectification can be exercised even if a mistake is committed by the Tribunal or even if a mistake has occurred at the instance of party to the appeal; (e) A mistake apparent from record should be self-evident, should not be a debatable issue, but this test might break down, because judicial opinions differ, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finality. In S. Nagaraj v. State of Karnataka1993 Supp (4) SCC 595, 618, Sahai, J. stated: Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne the aforementioned judgement, cited by the counsel for the assessee/petitioner. 5. Since we are standing over the matter, we are inclined to issue a formal notice in the matter. It is ordered accordingly. 5.1. Mr. Sharma accepts notice on behalf of the respondent/revenue. In case instructions are received to resist the writ petition, a counteraffidavit will be filed before the next date of hearing. 6. List the matter on 22.10.2021. 2. The aforementioned extract shows that Mr. Kunal Sharma, learned counsel for the respondent/revenue, was to revert with instructions today. 2.1. Furthermore, as would be evident from the order dated 11.10.2021, Mr. Sharma was also given leave to file a counter-affidavit, in case he were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er pricing adjustment in respect of the assessment year (AY) in issue i.e., AY 2011-12, stood resolved. 3.2. The petitioner s counsel, inadvertently, failed to bring to the notice of the Tribunal, that the issues raised in ground nos. 6 and 7 of the appeal were outstanding, and that they needed to be adjudicated upon. 4. Thus, having regard to the aforesaid, we are of the view that the impugned order dated 23.09.2020, passed by the Tribunal in the miscellaneous application i.e., MA No.555/Del/2019 deserves to be set aside. 4.1 It is ordered accordingly. 5. The Tribunal is requested to take up the petitioner s appeal, insofar as the issues pertaining to grounds 6 and 7 are concerned, and adjudicate upon the same, after hearing th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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