Tribunal recalls order to select overseas AE as tested party, ensuring fair resolution

The Tribunal allowed the miscellaneous application, recalling the previous order to address the specific issue of selecting the overseas AE as the tested party, emphasizing rectifying the oversight and ensuring a comprehensive review for a fair resolution.

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Issues:
1. Application under Sec. 254(2) of the Income Tax Act arising from Tribunal's order in ITA No. 674/Mum/2017.
2. Adjudication of "Ground of appeal No. 5" regarding selection of overseas AE as the tested party.

Analysis:
1. The applicant filed a miscellaneous application under Sec. 254(2) of the Income Tax Act, arising from the Tribunal's order in ITA No. 674/Mum/2017 dated 21.03.2018. The Authorized Representative (A.R) for the assessee highlighted that the appeal was against the final assessment order passed by the Assessing Officer (A.O) following directions of the Dispute Resolution Panel (DRP) for the assessment year 2012-13. The A.R contended that the Tribunal's order inadvertently omitted to adjudicate on "Ground of appeal No. 5" related to selecting the overseas AE as the tested party, despite both parties raising contentions on this issue during the appeal process.

2. The Departmental Representative (D.R) did not dispute the A.R's submissions. Upon review, the Tribunal acknowledged the oversight in not addressing the specific ground of appeal regarding the selection of the overseas AE as the tested party. The Tribunal found that the issue was referred to in the order but was not followed by a detailed adjudication. Consequently, the Tribunal deemed this omission as a glaring mistake apparent from the record, making the order amenable for rectification under Sec. 254(2) of the Act. The Tribunal recalled its earlier order for the limited purpose of adjudicating "Ground of appeal No. 5" concerning the selection of the overseas AE as the tested party for the assessment year 2012-13.

In conclusion, the Tribunal allowed the miscellaneous application filed by the assessee, recalling the previous order to address the specific issue of selecting the overseas AE as the tested party. The judgment emphasized rectifying the oversight in adjudicating on this crucial ground of appeal, ensuring a comprehensive review of all relevant contentions raised during the appeal process for a fair and just resolution.

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