TaxTMI 
TaxTMI 
2014 (7) TMI 417
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....t to recount the background facts of the case in brief. The assessee filed its return of income for the year on 31.10.2002 at a loss of Rs. 13.12 lacs. Regular assessment u/s.143(3) of the Act was made on 17.02.2005 at a positive income of Rs. 496.76 lacs by effecting adjustments, inter alia, on account of transfer pricing for Rs. 507.08 lacs as recommended by the Transfer Pricing Officer (TPO) vide his order dated 15.02.2005. The assessee secured partial relief in first appeal, i.e., to the extent of Rs. 28.86 lacs on account of a transfer pricing adjustment, besides depreciation at Rs. 2.80 lacs, so that its income came to be assessed at Rs. 465.10 lacs. The matter was carried by it before the Tribunal, which vide its order dated 30.08.2006 (in ITA No.61/Mum(A)/2006 dated 27.06.2006/PB pgs.46-52) restored the matter back to the file of the A.O. for fresh adjudication; the operating part of its order reading as under: '5. After considering the rival submissions and perusing the material on record we find that the matter needs re-verification at the end of the Assessing Officer. The evidence which is in shape of confirmatory letter from lessee is an evidence which goes to the ro....
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.... at Rs. 100.23 lacs, i.e., as against Rs. 105.02 lacs, for which the addition by way of adjustment had been earlier withdrawn by him. The assessee's income was accordingly assessed at Rs. 1,53,01,982/- vide order u/s.154 dated 17.03.2008. The assessee's appeal against the same was rejected by the ld. CIT(A) on the basis that the rectification had been carried out by the A.O. with the consent of the assessee's counsel. 4.1 Before us, the matter was argued at length by the parties. The tribunal, it was contended by the ld. AR, had disposed of both the issues, i.e., qua lease rentals for DG and MC per its order, taking us through the relevant discussion made by it vide para 2 of its order. The assessee had in fact disputed the entire addition of Rs. 478.22 lacs surviving upon the order by the first appellate authority in the first round. Further, the tribunal had subsequently, following its order for A.Y. 2002-03 (in ITA No.2578/Mum(B)/2007 dated 24.03.2008, placed at PB pgs.120-121), made a similar direction for A.Y. 2003-04. The TPO vide his order u/s.94CA(3) r/w s. 254 dated 30.09.2010 (PB pgs. 122-127) has, besides adjustment on account of lease rentals for DG, also modified hi....
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....s the tribunal's order contained no specific direction in respect of the adjustment qua MC. He was queried by the Bench that in that case the tribunal's order must be necessarily construed as having not disposed of the assessee's entire grounds raised before it, which in fact is not the case of either party (i.e., up to the stage of the tribunal) and, further, that the very same order has in fact been construed by the Revenue as bearing a direction qua adjustment for MC as well (for A.Y. 2003-04), which, again, cannot be in-as-much as the Revenue cannot be possibly be allowed to take a contrary view in relation to the same order, i.e., for different years. It was submitted by him that the order by the TPO and, consequently, by the A.O. for A.Y. 2003-04, would have no bearing in the matter. The only course open for the assessee, in the wake of the understanding by the TPO of the tribunal's order as not bearing any direction qua MC for the current year was to move a rectification application before the tribunal to dispose of its ground qua the same. 5. We have heard the parties, and perused the material on record, giving our careful consideration to the matter. 5.1 In our view,....
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....sment in consistence and agreement with the direction by the TPO u/s. 92CA(3), was only acting in accordance with the law, rectifying his earlier order, he has, in doing so, and perhaps unwittingly, prevented the assessee from appealing against its assessment or his (A.O.'s) order, were the same to have been made or passed so in the first instance. The rectification order (whereby the A.O. aligns himself with the directions by the TPO, i.e., to the extent the assessment was in disagreement therewith) merging with the original order (assessment), the assessee's appeal against the rectification order would, therefore, stand to be considered only as an appeal against an assessment order. Not doing so would leave the assessee remedy less and for no fault of its'. We say so as the purview of the rectification proceeding is severely limited, and whether the tribunal had in fact passed any specific direction qua Adjustment 'B' or had omitted to do so, is certainly a matter requiring an interpretation of its order, read in totality, along with the assessee's grounds and contentions raised before the tribunal, drawing inference/s there-from, and which would only make it a debatable or conte....