Haier Appliances India Pvt. Ltd., New Delhi V. DCIT, Circle-11(1), New Delhi

MA 69/DEL/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3255 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I1
• Next Hearing Date: 04-08-2022
• Assessment Year: 2008-2009
• Appeal Filed On: 17-03-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Transfer pricing

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘I-1’, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. C.N. PRASAD, JUDICIAL MEMBER MA No.69/Del/2021 (In ITA No.2279/Del/2018) Assessment Year: 2008-09 Haier Appliances India Pvt. Ltd. Building No.1, Okhla Phase-III, New Delhi PAN No.AABCH3162L Vs. DCIT Circle -11 (1) New Delhi (APPELLAN (RESPONDENT) Appellant Sh. Neeraj Jain, Advocate Sh. Abhishek Aggarwal, CA Respondent Sh. Anuj Garg, Sr. DR Date of hearing: 05/08/2022 Date of Pronouncement: 10/08/2022 ORDER PER N.K. BILLAIYA, AM: This miscellaneous application by the assessee is directed towards the order of this Tribunal in ITA No.2279/Del/2018 dated 21.09.2020 for A.Y.2008-09. 2. Before us the Counsel drew our attention to the miscellaneous application and pointed out that an error has crept in the order of the Tribunal in as much as at one stage the Tribunal accepted the contention of the assessee and recorded a 2 conclusive finding that application of RPM is appropriate in the present case and later while addressing to the alternative plea the Tribunal has directed the TPO to restrict the adjustment to the extent of Rs. 28510127/-. 3. It is the say of the Counsel that the finding given in earlier part of the decision is inconsistent with the finding given in the latter part of the decision and the same needs to be removed. 4. Per contra the DR strongly supported the findings of the Tribunal and stated that no rectifiable mistake appears in the order of the Tribunal. 5. We have given a thoughtful consideration to the submissions made by the Counsel and have carefully perused the order of this Tribunal (supra). It is true that the Tribunal has recorded a conclusive finding that application of RPM is appropriate in the instant case. However, thereafter the Tribunal proceeded to determine the arms length price of AMP expenses and directed the TPO to restrict the adjustment to Rs.28510127/. 6. In our considered opinion there may be an error of judgment on the part of the Tribunal but such error is not rectifiable u/s. 254 (2) of the Act. The Hon’ble Bombay High Court in the case of Ramesh Electric And Trading Company 203 ITR 497 has the occasion to consider an issue relating to the powers of the Tribunal u/s. 254 (2) of the Act. The Hon’ble High Court held as under :- “Under Section 254 (2) of the Income-tax Act, 1961 the Appellate Tribunal may, “with a view to rectifying any 3 mistake apparent from the record,” amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Act. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from record. This is merely a power of amending its order. The power of rectification under section 254 (2) can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on record, although it may be an error of judgment. The Tribunal cannot, in the exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion. 7. The Hon’ble Supreme Court in the case of Reliance Telecom Limited Vs. CIT in Civil Appeal No.7110 of 2021 and Reliance Communications Limited in Civil Appeal No.7111 of 2021 as held as under :- 4 5 6 7 8. Considering the facts of the case viz-a-viz the contents of the miscellaneous application in the light of the judicial decisions discussed here in above the miscellaneous application is dismissed. Order pronounced in the open court on 10.08.2022. Sd/- Sd/- (C.N. PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA, Sr. Private Secretary* Date:-10.08.2022 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 8 Date of dictation 05.08.2022 Date on which the typed draft is placed before the dictating Member 05.08.2022 Date on which the typed draft is placed before the Other member 10.08.2022 Date on which the approved draft comes to the Sr.PS/PS 10.08.2022 Date on which the fair order is placed before the Dictating Member for Pronouncement 10.08.2022 Date on which the fair order comes back to the Sr. PS/ PS 10.08.2022 Date on which the final order is uploaded on the website of ITAT 10.08.2022 Date on which the file goes to the Bench Clerk 10.08.2022 Date on which file goes to the Head Clerk. The date on which file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order