ASSTT. COMMISSIONER OF INCOME TAX CIR. 3 ( 4 ) , MUMBAI V. RELIANCE INDUSTRIES LTD, MUMBAI

MA 146/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5246 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-02-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2013-2014
• Appeal Filed On: 29-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Set aside
• Section: 254(2); 43; 153

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “J” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Amarjit Singh (JM) M.A. No. 146/Mum/2021 in I.T.A. No. 136/Mum/2018 (A.Y. 2013-14) ACIT, Circle 3(4) Centre-1 29 th Floor World Trade Centre Cuffe Parade Mumbai-400 005. Vs. M/s. Reliance Industries Ltd. 3 rd Floor, Maker Chamber-IV 222, Nariman Point Mumbai-400 021. PAN : AAACR5055K (Appellant) (Respondent) Assessee by Shri Madhur Aggarwal Department by Shri Mehul Jain Date of Hearing 10.12.2021 Date of Pronouncement 08.02.2022 O R D E R Per Shamim Yahya (AM) :- This Miscellaneous Application is against the order of the ITAT in ITA No. 136/Mum/2018 vide order dated 10.11.2020. 2. In the Miscellaneous Application the Revenue’s prayer are as under :- 1. Whereas the grounds preferred by the revenue on the issue are as follows: 28. "On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in deleting the rate of 1.5 % charged by the TPOI arriving at corporate guarantee fee chargeable on the assessee." 29. "On the facts and circumstances of the case and law, the Ld. CIT(A) contradicted himself instating in one place that he accepted the yield spread method as followed by assesses for A.Y. 2011-12 and 2012-13 and at another place relying on the Hon'ble ITAT's decision for a y 2005-2006 to 2009-2010 wherein assessee followed CUP method." 30. "On the facts and circumstances of the case and law, the Ld. CIT(A) has failed to appreciate the mandatory provisions of rule 10B(4) to use contemporary data to arrive at ALP." 31. "On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in relying on the rate arrived at for earlier years without appreciating the M/s. Reliance Industries Ltd. 2 fact that the corporate guarantee rate would vary year on year based on credit rating of assessee and AE, interest rates prevailing and various credit risks." 32. "On the facts and circumstances of the case and law, the Ld. CIT(A) failed to demonstrate as to how the rates were arrived at by the assessee based on yield spread method followed by assessee for impugned AY and has erred on simply accepting the rates adopted by assessee without looking into actual working of the yield spread methodology of assessee." 33. "On the facts and circumstances of the case and law, the Ld. CIT(A) has failed to show as to how assessee followed yield spread method correctly for impugned AY." 34. "On the facts and circumstances of the case and law, the Ld. CIT(A) has failed to give any reason for rejecting the CUP rate adopted by the TPO." 2. Whereas the same have been adjudicated by the Hon'ble ITAT vide its order dated 10.11.2020 as follows: "61. Learned Counsel of the assessee stated that the issue is covered in favour of the assessee by the ITAT decision in assessee's own case for A.Y. 2011-12 and A.Y. 2012-13 and the facts are identical. He submitted that issue has further been clarified in M.A. order for A.Y. 2011-12 and 2012-13. It is further submitted that yield spread approach adopted considering letter of bank issued for F.Y. 2012-13, hence ground No. 30 to 33 is infructuous. In this connection assessee has also drawn support from the following decisions of Hon'ble Bombay High Court: - • CIT vs. Glenmark Pharmaceuticals Ltd. (ITA No. 1302 of 2014) • CIT vs. M/S Everest Kento Cylinders Ltd. (ITA No. 1165 of 2013) 62. It has been further submitted that Hon'ble Bombay High Court decision in the case of Glen mark Pharmaceuticals Ltd. (supra) has been upheld by Hon'ble Apex Court in CIT Vs. Glenmark Pharmaceuticals Ltd. It has further been submitted that Hon'ble Bombay High Court in the case of Everest Kento Cylinders Ltd. (supra) the Tribunal decision which rejected naked bank quotes. 63. We have carefully considered the submission and perused the record. As regards the issue of short term guarantee is concerned the issue is covered ITAT decision as referred above. Moreover, the decision of Hon'ble Bombay High Court, quoted above also supports the proposition. 64. As regards the long term guarantee is concerned, the ITAT in M.A. No. 736/Mum/2018 for A.Y. 2012-13 has observed that the ITAT has upheld the yield spread approach adopted by the assessee for A.Y. 2011-12 and has remanded the matter observing as under :- M/s. Reliance Industries Ltd. 3 "We heard Ld D.R and perused the record. We notice that the Tribunal has upheld the order passed by Ld CIT(A) in AY 2011-12 on an identical issue, wherein the Ld CIT(A) has upheld the yield spread approach/interest saving approach adopted by the assessee, meaning thereby, the change in methodology for benchmarking the guarantee commission was upheld by the Tribunal. When the assessee is following the yield spread approach/interest saving approach, the guarantee commission would depend upon the interest rate charged by the banks. We notice that the Tribunal has omitted to consider this important point. Accordingly, we find merit in the contentions of the assessee that there is mistake apparent from record on this issue. Accordingly, the paragraph 141 of the order is replaced by this paragraph:-"141. In AY 2011-12, we have considered an identical issue and upheld the view taken by Ld CIT(A). However, we notice that the Ld CIT(A) has failed to appreciate the methodology of the yield spread approach/interest saving approach. We also notice that the above said methodology has been upheld by Ld C1T(A) as well as by us in AY 2011-12. It is the contention of the assessee that under the yield spread approach/interest saving approach, the guarantee commission cannot be static and it would keep changing depending upon the interest spread. We find merit in the said contention. We notice that the said claim of the assessee has not been examined by the tax authorities. Accordingly we are of the view that the contentions of the assessee require examination at the end of the AO. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining it afresh under the yield spread approach/interest saving approach." 65. Thus from the above decision it is amply clear that the assessee yield base approach has been upheld by the ITAT. Further the yield based approach is adopted considering the letter of bank issued for year 2012-13. Hence, the objections of the Revenue are not sustainable. Accordingly, we uphold the order of learned CIT(A)." 3. Whereas the Miscellaneous application No 737/M/2018 dated 02.01.2019 for AY 2012-13 stated the following: "The para 141 of the order is replaced by this paragraph:- 141. In AY2011-12, we have considered an identical issue and upheld the view taken by Ld CIT(A). However, we notice that the Ld CIT(A) has failed to appreciate the methodology of the yield spread Approach/ interest saving approach. We also notice that the above said methodology has been upheld by Ld CIT(A) as well as by us in AY 2011-12. It is in the contention of the assessee that under the yield spread approach/interest saving approach, the guarantee commission cannot be static and it would keep changing depending upon the interest spread. We find merit in the said contention. We notice that the said claim of the assessee has not been examined by the tax authorities. Accordingly we are of the view that the contentions of the assessee require examination at the end of the AO. M/s. Reliance Industries Ltd. 4 Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file of the AO for examining it afresh under the yield spread approach/interest saving approach." 4. Whereas it is clear from para 63,64 and 65 of the Tribunal's order for AY 2013-14 that the benchmarking of the assessee is accepted based on the order of the Tribunal for AY 2012-13 wherein the matter was set aside and remanded back to the file of the TPO to examine it afresh under the yield spread approach/interest saving approach. 5. Whereas all of a sudden, vide para 65 of its order the Hon'ble Tribunal has held that yield based approach is adopted considering the letter of bank issued for year 2012-13 for the transaction of long term corporate guarantee without giving the TPO an opportunity to examine the benchmarking afresh under the yield spread approach/interest saving approach by setting it aside and remanding the matter, thus contradicting the order for AY 2012-13 on which reliance has been placed by the Tribunal. 6. Whereas vide para 63 the Tribunal has given separate findings for long term and short term guarantee and has stated that the issue of short term guarantee is covered vide the ITAT decisions referred above without clarifying whether the issue is set aside to the file, of the TPO to examine the benchmarking afresh under the yield spread approach/interest saving approach as directed in the order for AY 2012-13 read with para 5 and para 6 of M.A. No.737/Mum/2018 for AY 2012-13 dated 02.01.2019 which held as follows: "5... We noticed that learned CIT(A), by following the decision rendered in the case of Adani Wilmar Ltd. (supra), has upheld the yield spread approach/interest saving approach adopted by the assessee for benchmarking long term guarantee and short term guarantee. Before us, the Revenue could not place any material to show that the methodology so adopted by the assessee is contrary to law/facts. Accordingly we uphold the same." "6. "The para 141 of the order is replaced by this paragraph:-141 In AY 2011-12, we have considered an identical issue and upheld the view taken by Ld CIT(A). However, we notice that the Ld CIT(A) has failed to appreciate the methodology of the yield spread approach/interest saving approach. We also notice that the above said methodology has been upheld by Ld CIT(A) as well as by us in AY 2011-12. It is in the contention of the assessee that under the yield spread approach/interest saving approach, the guarantee commission cannot be static and it would keep changing depending upon the interest spread. We find merit in the said contention. We notice that the said claim of the assessee has not been examined by the tax authorities. Accordingly we are of the view that the contentions of the assessee require examination at the end of the AO. Accordingly we set aside the order passed by Ld CIT(A) on this issue and restore the same to the file M/s. Reliance Industries Ltd. 5 of the AO for examining it afresh under the yield spread approach/interest saving approach." 7. Whereas the department prefers the following grounds through this miscellaneous petition: 7.1 The Hon’ble Tribunal upheld the method of the assessee (Yield spread approach/Interest saving approach) based on its own order for AY 2012-13 in the assessee's own case wherein the issue was restored to the file of the AO to examine afresh under the yield spread approach/interest saving approach for both short term and long term guarantees, whereas for AY 2013-14, the Tribunal has dismissed the grounds of the Revenue without providing opportunity to revenue to examine the benchmarking of the assessee under this method. 7.2 In the grounds 32 and 33 preferred by the Revenue before the Hon'ble ITAT as reproduced below, it is clear that the tax authorities have not examined the Yield spread method for the impugned year: 32. "On the facts and circumstances of the case and law, the Ld. CIT(A) failed to demonstrate as to how the rates were arrived at by the assessee based on yield spread method followed by assessee for impugned AY and has erred on simply accepting the rates adopted by assessee without looking into actual working of the yield spread methodology of assessee." 33. "On the facts and circumstances of the case and law, the Ld. CIT(A) has failed to show as to how assessee followed yield spread method correctly for impugned AY." Thus, it is imperative to examine the rates arrived at by the assessee under the Yield approach by the tax authorities. However, without giving such opportunity for the Revenue, the ITAT in its order ruled that the above grounds are infructuous, which is a mistake apparent from record. The fact that the CIT(A) did not verify the working under the method is very clear from the fact that at one place in his order he accepted the yield spread method as followed by assessee for A.Y. 2011-12 and 2012-13 and at another place relying on the Hon'ble ITAT's decision for AYs 2005-2006 to 2009-2010 wherein assessee followed CUP method. This has been clearly stated in Revenue's ground No.29 also. Again, when he relied on the order of Hon'ble ITAT for the AY 2012-13, he has not remanded the matter back to the AO/TPO when Hon'ble ITAT for the AY 2012-13 had set aside the issue to the file of AO for fresh examination under the Yield Method. 7.3 Ground No. 30 preferred by the Revenue before the Hon'ble ITAT is as follows: 30. "On the facts and circumstances of the case and law, the Ld. CIT(A) has failed to appreciate the mandatory provisions of rule 10B(4) to use contemporary data to arrive at ALP." M/s. Reliance Industries Ltd. 6 This ground has also been held as infructuous by the Hon'ble ITAT stating that the assessee has adopted yield spread approach considering letter of bank issued for FY 2012-13. Again, Revenue has not been given opportunity to examine the said letter for benchmarking under yield spread approach. The blank quote issued by one bank for one AE cannot be adopted to all the AEs across the board which are situated in different geographies, which is violative of Rule 10B(2)(d). 7.4 Ground No.31 preferred by the Revenue before the Hon'ble ITAT is as follows: 31. "On the facts and circumstances of the case and law, the Ld. CIT(A) has erred in relying on the rate arrived at for earlier years without appreciating the fact that the corporate guarantee rate would vary year on year based on credit rating of assessee and AE, interest rates prevailing and various credit risks." This ground has also been held by the Hon'ble ITAT as infructuous, relying on its orders for earlier years for the said short term guarantees, which is violative of 10B(4). 7.5 In the yield approach adopted by the assessee, it has split the interest differential in the ratio of 50:50 between the assessee and the AEs in an adhoc manner, whereas it is anybody's knowledge that FAR (Functions performed, Assets utilized and Risks assumed) of the huge assessee and the small less-creditworthy AEs cannot be equated on the same footing at any stretch and so it cannot be shared equally among them and it has to be examined for each AY based on FAR of the year. 7.6 The Hon'ble Tribunal has set aside the issue to the AO/TPO for the AY 2012-13 in its original order (I.T. (TP)A. No. 5842/Mum/2017) and same has been upheld in the same Miscellaneous Order also (M.A. No.736/Mum/2018 dated 2.1.2019) and thus following the same, it is prayed that the Hon’ble Tribunal at least should have set aside the issue back to the file of the AO/TPO for AY 2013-14 also. PRAYER In view of the reasons stated above, Miscellaneous Application may kindly be allowed.” 3. Learned Counsel of the assessee submitted that Revenue is seeking review of the ITAT order not permissible under the Act. Learned Counsel has made following submission 1. The Revenue has filed Miscellaneous Application seeking rectification of alleged mistakes apparent from the record in the order dated 10 November 2020 passed by the Hon'ble Tribunal in ITA 136/Mum/2018 relating to AY 2013-14. M/s. Reliance Industries Ltd. 7 2. During the relevant financial year, the Assessee has given corporate guarantees on behalf of the Associated Enterprises ('AE') in respect of borrowings by the AEs from the banks. Assessee has recovered guarantee fee from the AEs in respect of a. short term guarantees @ 0.38% p.a (from 1/4/2012 upto 31/12/2012) and @ 0.30% (from 01/01/2013 to 31/03/2013) b. long term guarantees @ 0.60% p.a. (from 1/4/2012 upto 31/12/2012) and @ 1.20% p.a. (from 01/01/2013 to 31/03/2013) 3. The Assessee adopted yield spread/interest saving approach based on the bank letters for benchmarking guarantee commission. Benchmarking filed by the Assessee is summarized under: a. Short term guarantee benchmarking: Based on the letters issued by HSBC, the interest differential between facility without guarantee for the AEs and facility for RIL was 75 bps (from 1/4/2012 upto 31/12/2012) and 60 bps from (01/01/2013 to 31/03/2013). Accordingly, commission was charged @ 50% of the said interest differential i.e. 0.38% p.a. from 1/4/2012 upto 31/12/2012 and 0.30% p.a. from 01/01/2013 to 31/03/2013 from the AEs. b. Long term guarantee benchmarking: i) Based on the letters issued by Barclays, the interest rate differential with and without guarantee worked out to 1.12% and accordingly, commission was charged @ 50% of the said interest differential i.e. 0.6% p.a. from 1/4/2012 upto 31/12/2012 ii) Based on the letters issued by CITI and Barclays for the period 01/01/2013 to 31/03/2013, the interest rate differential with and without guarantee worked out at 2.42% and 2.40% respectively. Thus, the average interest rate differential was 241 bps. Accordingly, the commission was charged @ 50% of the said interest differential i.e 1.20% p.a. from 01/01/2013 to 31/03/2013. 4. After examining the documentation produced by the assessee, the TPO rejected the method adopted by the Assessee and vide its order dated 31 October 2016 (Page 43 to 67) adopted naked bank quotes as benchmarks by applying the CUP method. The learned CIT(A) has upheld the method i.e. the yield spread approach and the benchmarking of the Assessee based on bank letters vide its order dated 9 October 2017 (Page 142 to 154). 5. Aggrieved with the finding of the CIT(A) on the issue, Revenue filed an appeal vide its grounds 28 to 34. The Hon'ble Tribunal vide its order dated 10 November 2020 (page 34 to 37) dismissed grounds of the Revenue and upheld CIT(A)'s order. Revenue has now filed MA on the issues arising out of Revenue's appeal on grounds 29 to 34. 6. The Revenue has filed MA on the grounds that the Tribunal, while following its decision in AY 2012-13, has not remanded the matter back to M/s. Reliance Industries Ltd. 8 the file of the TPO in the present AY also to examine the benchmarking of guarantee commission afresh under the yield spread approach/ interest savings approach. 7. We submit that the MA filed by the Revenue is frivolous and not maintainable on the basis of the following propositions: (i) The Revenue has made an attempt to reargue the entire issue by filing this MA which in turn amounts to review of the order and same is beyond the scope of powers under section 254 (ii) There is no dispute in method of benchmarking being 'yield spread' method (based on bank letters) and the CIT(A) in his order for AY 13-14 has followed the finding of the Tribunal in the earlier years. The CIT(A) further notes that his predecessor in AY 2012-13 has after accepting the method erroneously considered wrong rate for the part of the year, gave categorical finding accepting benchmarking of assessee based on correct rates as per the bank letters for the relevant year. These findings of the CIT(A) are confirmed by the Tribunal and, hence, there is no mistake apparent from records. (iii) All the documents related to benchmarking were available before the TPO, the CIT(A), the DR and the Tribunal and, hence, there is no justification for the revenue seeking a remand of the matter back to the TPO to examine same documents without even pointing out anything wrong in the said documents. (iv) Revenue has sought to bring and argue new grounds of appeal under the garb of MA which were not taken originally and hence MA shall be dismissed In the below paragraphs, we have given rebuttal to grounds taken by the Revenue in the MA with detailed explanation to the above propositions Para 4 to 6 of the Revenue's MA and Ground 7.1 and 7.6 of the MA 8. The Assessee submits that in AY 2012-13 (i.e. preceding year), it charged guarantee commission @ 1.8% for 1 April 2011 to 31 December 2011 and @ 0.6% for 1 January 2012 to 31 March 2012 in respect of long-term guarantees. The CIT(A) in its order for AY 2012-13 vide para 26.3 on Page 134 upheld the benchmarking of guarantee commission using yield spread approach (based on bank letters) adopted by the assessee but proceeded to determine arm's length rate of 1.8% for long term guarantee for the whole of the year, ignoring the rate of 0.60% determined for the last 3 months of the relevant FY. The Assessee had accordingly filed the appeal with the Tribunal on this limited aspect to take correct rate and rectify the mistake of the CIT(A). Since there was no specific finding on this aspect in the order passed by the Tribunal, in the MA application (MA 736/M/18) dated 17 December 2018 vide para 2.7, the Assessee prayed that once yield spread approach is accepted by the CIT(A), the results flowing therefrom should be upheld and M/s. Reliance Industries Ltd. 9 therefore, the rate of 0.60% from 1 January to 31 March 2012 be upheld for long term guarantee. In view of these typical facts, the matter was set aside the Tribunal in the MA order to examine the differential in interest savings for the last quarter of FY 2011-12, under the yield spread approach/ interest savings approach. 9. However, the CIT(A) in its order for AY 2013-14 vide para 21.3 has considered the methodology adopted and the contemporaneous documentation submitted by the Assessee and after such consideration upheld rate of 0.6% for 1 April 2012 to 31 December 2012 and 1.2% for 1 January 2013 to 31 March 2013 as guarantee commission for long term guarantee. This is evidenced from the finding of the CIT(A) in his order on Page 154. The CIT(A) noted that in AY 2012-13, single rate was upheld for long term guarantee but on due consideration and examination of method and documentation of the assessee for the year under consideration, decided that once yield spread approach is accepted, the results flowing therefrom should be upheld. Accordingly, CIT(A) upheld the rates determined by the Assessee based on the quotes for the year. The extract of CIT(A) order is reproduced below: The then CIT(A) in AY 2012-13 has followed the order for AY 2011-12, however, restricted the rate of commission to 1.8% though the Appellant had determined 1.8% for the period April to December 2011 and 0.6% for the period January to March 2012. On perusing the facts for AY 2013-14, it is found that the guarantees from AY 2011-12 and AY 2012-13 are flowing in AY 2013-14. Further, the undersigned is of a considered opinion that, once the yield spread approach adopted by the appellant has been accepted in principle, then the results for the arm's length guarantee fees flowing out of the benchmarking also should be accepted. As stated above, yield spread approach is internationally accepted methodology for benchmarking the guarantee commission. The contentions of the TPO in respect of rejection of the approach followed by the Appellant to find out the differential interest Is not found to be acceptable considering the Jurisdictional Tribunal decisions in case of Gulf Energy Maritime. Following the orders of AY 2011-12 and AY 2012-13, the benchmarking done by the Appellant by following the yield spread approach in AY 2013-14 in respect of long term guarantee is accepted and the rates determined by the Appellant based on quotes for the year are held to be at ALP. 10. It is, therefore, the submission of the Assessee that the case for AY 2013- 14 stands on a different footing in comparison to that for AY 2012-13 to the limited extent of verification of facts by the CIT(A). In the order for AY 2013- 14,the CIT(A) has verified the facts (page 153 and 154) and contemporaneous documentation filed by the Assessee, compared it with the findings of the CIT(A) for the earlier AY 2012-13 and then given a clear finding that the results flowing out of the benchmarking for relevant year should be accepted. Therefore, CIT(A) accepted the guarantee charged based on quotes for the year. In the AY 2012-13 also the CIT(A) had accepted the said quotes but, M/s. Reliance Industries Ltd. 10 inadvertently, failed to realize that the quote for the last quarter is different. The facts of the case for AY 2013-14 are similar to AY 2011-12 and in AY 2011-12, the Tribunal has accepted the benchmarking of the Assessee and there is no set aside to the TPO. Consequently, there is no merit in Revenue's prayer that Tribunal's decision on this issue for AY 2013-14 should be modified and matter be set aside as done in the case of AY 2012-13. 11. It is also to be noted that an application under Section 254(2) of the Income-tax Act, 1961 ('Act') is for rectifying 'mistakes apparent from the record'. The scope of section 254(2) of the Act is narrow and in the garb of the MA, revenue is seeking review of the order, which is not permissible. 12. The methodology and the documentation pertaining to the AY 2013-14 were filed before the TPO. The TPO has already examined it and given his findings in TP order. This documentation was also part of the factual paper book before CIT(A) and has been duly considered by the CIT(A) as evident from his order and more particularly from the relevant para reproduced above. The same documentation was also filed with the DR and the Hon'ble Tribunal in the paper book (Page 885 to 945). The AR also submitted summary chart wherein it was stated that Yield spread approach was adopted considering letters of banks issued for AY 2013-14. The DR has not pointed out any infirmity either in the letters or the calculations flowing out of the benchmarking or the CIT(A)'s findings. The Tribunal has considered all facts and dismissed Revenue's ground. Therefore, the prayer of the Revenue to review the decision is beyond the scope of the section 254(2) of the Act. 13. Also, the Revenue's contention for review of the Tribunal's decision for AY 2013-14 merely relying upon MA for AY 2012-13 (which was on different footing) is frivolous. The Tribunal decisions in both the AYs are based on peculiar findings of CIT(A) though in principle yield spread approach based on bank letters submitted by the Assessee have been upheld in both AYs. 14. Further, as the TPO has already examined the letters and benchmarking during the assessment proceedings, there is no merit in Revenue's contention that the order was passed without providing an opportunity to examine the benchmarking of the assessee. In fact, allowing this MA would amount to giving second opportunity to the TPO to review the benchmarking. This is beyond the jurisdiction of the TPO unless new facts or evidence that did not exist before the TPO at the time of assessment proceedings, are brought on record. Ground 7.2 of the MA 15. As explained in para 12 above, the methodology and the documentation pertaining to the AY 2013-14 were filed before the TPO which are examined by him and noted in his order. Same were also filed with the CIT(A) and DR. Thus, there is no merit in the contention that CIT(A) has not verified the yield spread approach. M/s. Reliance Industries Ltd. 11 16. The Revenue has also erred in stating that "Tribunal in its order ruled that the grounds 32 and 33 are infructuous, which is a mistake apparent from record". We submits that the Tribunal had approved the approach adopted by assessee in using yield spread approach based on bank letters (for AY 2011- 12 and 2012-13). The Tribunal has also reproduced the findings of the CIT(A) for AY 2013-14 wherein CIT(A) has noted the mistake of using single rate made by his predecessor for AY 2012-13. Considering all facts and prior orders, Tribunal has ruled that the objections of the Revenue are not sustainable (in para 65) and accordingly, upheld the order of CIT(A) for AY 2013-14. The Tribunal has not held grounds 32 and 33 to be infructuous, and, therefore, there can be no question of there being any mistake apparent from the record. Ground 7.3 of the MA 17. The ground 30 of the Revenue in the original appeal was in respect of Rule 10B(4) but vide above Ground 7.3 of the MA, Revenue is raising new ground on violation of Rule 10B(2)(d) and, therefore, it is beyond the scope of Section 254(2) of the Act. 18. Revenue's contentions that no opportunity was given to the Revenue to examine the benchmarking, is dealt with in para 12 above. Therefore, Revenue cannot seek review of the Tribunal order or seek second opportunity to review the benchmarking as it is beyond the scope of section 254(2) of the Act. Ground 7.4 of the MA 19. The Revenue has erred in stating that Tribunal in its order ruled that the grounds 31 are infructuous. 20. The Tribunal has upheld CIT(A)'s order. CIT(A) has considered the letters/quotes for the year and upheld the benchmarking as contemporaneous in its order for AY 2013-14 on page 154. Therefore, there is no merit in the Revenue's contention that the decision of the Tribunal is in violation of Rule 10B(4). Ground 7.5 of the MA 21. It is noted that the Revenue is raising new ground on the split of interest rate differential in the ratio of 50:50 instead of FAR which was not a ground in the memo of appeal filed by the Revenue and therefore, it is beyond the scope of Section 254(2) of the Act. 22. We submit that the CIT(A) in its order for AY 2013-14 has verified the workings of yield spread approach and accepted it as the correct methodology for benchmarking guarantee commission. Tribunal in its order for AY 2011-12 and AY 2012-13 has accepted this methodology. The order of M/s. Reliance Industries Ltd. 12 CIT(A) has been upheld for AY 2013-14. There is no mistake apparent from record on this ground. Conclusion 23. In view of the above, it is submitted that the prayer of the Revenue in the MA is essentially to review the Hon'ble Tribunal's decision for AY 2013-14 in respect of guarantee commission. This is beyond the scope of the section 254(2) of the Act. The Assessee has not filed any new document on the issue before the Hon'ble Tribunal. All the documents were available on the file with the TPO. The TPO has already examined the benchmarking during the assessment proceedings. These documents were then filed in the paper book before the CIT(A) who in the proceedings for AY 2013-14, has examined them, drawn a comparison of the findings by the CIT(A) in the order for AY 2012-13 and then upheld the benchmarking adopted by the assessee. These documents were also filed before the Hon'ble Tribunal in the paper book. The Hon'ble Tribunal has after considering the arguments and the documents filed in the paper book, given its finding on the issue. Thus, there is no merit in Revenue's contention that the order was passed without providing an opportunity to the TPO to examine the benchmarking of the assessee. The TPO/AO has not been able to show that there is any mistake apparent on record. On the contrary, the Revenue has sought to raise new grounds through the MA and the same is beyond the scope of section 254(2) of the Act. As there is no mistake apparent in the order of the Hon'ble Tribunal, this MA deserves to be rejected.” 4. We have carefully gone through the submission and perused the records. We are of the considered opinion that the Revenue is seeking a review of the order not permissible under section 254(2) of the I.T. Act. The submission of the Revenue that the ITAT has erred in appreciating the learned CIT(A)’s order in light of an Miscellaneous Application order of the ITAT in assessee’s own case is clearly a plea of seeking review of the ITAT order. The revenue pleads that since one matter was remitted in a Miscellaneous Application to the file of the Assessing Officer, ITAT in this appeal also should have remitted the matter to the Assessing Officer. The revenue while trying to reargue the matter is using the word “it is anybody knowledge” in para 7.5 of the above Miscellaneous Application. This is clearly an effort to get a review of the ITAT order not permissible under section 254(2) of the Act. The last prayer of the revenue that the ITAT should have at least set aside the matter to the file of the Assessing Officer/TPO for A.Y. 2013-14 also makes it abundantly clear that the M/s. Reliance Industries Ltd. 13 Miscellaneous Application seeks a review of the order. It is settled law that review of the order under the garb of rectification of mistake u/s. 254(2) is not permissible. In this regard we may refer order of Hon'ble Apex Court in the case of Reliance Telecommunication Ltd. (Civil Appeal No. 7110 of 2021 dated 3.12.2021) which has set aside on M.A. order by the ITAT, which was confirmed by Hon'ble High Court by expounding as under :- 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as M/s. Reliance Industries Ltd. 14 permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored. 8. Considering the fact that the Assessee had earlier preferred appeal/s before the High Court challenging the original order passed by the ITAT dated 06.09.2013, which the Assessee withdrew in view of the subsequent order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013, we observe that if the Assessee/s prefers/prefer appeals before the High Court against the original order dated 06.09.2013 within a period of six weeks from today, the same may be decided and disposed of in accordance with law and on its/their own merits and without raising any objection with respect to limitation. 9. Both the appeals are accordingly allowed in the aforesaid terms. However, there shall be no order as to costs. 5. In the background of aforesaid decision and precedent this Miscellaneous Application by the Revenue stands dismissed. Order pronounced in the open court on 8.2.2022. Sd/- Sd/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER M/s. Reliance Industries Ltd. 15 Mumbai; Dated : 08/02/2022 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai