TaxTMI 
TaxTMI 
2018 (9) TMI 1637
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Income Tax Appellate Tribunal in the petitioner's own case for the preceding assessment year 2011-2012. 2. The case of the petitioner in short is as follows: (i) The petitioner is engaged in the business of manufacturing and supply of wind turbine generators. In respect of the assessment year 2013-2014, they filed the return of income. The case was subsequently taken up for scrutiny by the second respondent and notice under section 143(2) of the Income Tax Act was issued to the petitioner on 02.09.2014. Due to the presence of international transactions, the second respondent made a reference under section 92CA to the Transfer Pricing Officer to consider the issue relating to royalty payment by the petitioner to Regen, Cypr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e was no reason to differ with such decision for the immediate preceding year. (iii) However, with regard to the assessment year 2011-12 on the same set of facts and circumstances, an appeal was filed before the Income Tax Appellate Tribunal, which in turn, by its order dated 17.08.2016 held that the issue to be re-looked as the percentage computed by the Transfer Pricing Officer is 1.14% in comparison with the Arm's Length Price margin being 4.60%. Thus, the Tribunal remitted the issue back for recalculation, to the file of the Transfer Pricing Officer, to consider the royalty payments on brought out component based on technical specification. Pursuant to the said order of the Tribunal, the Transfer Pricing Officer through the order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted 25.09.2017 has to be rectified accordingly. (v) However, the first respondent without disposing the application filed by the petitioner under Rule 13 has passed the impugned order on 12.10.2017 merely by adjudicating upon its own suo motu rectification application. Hence, the present writ petition. 3. A counter affidavit is filed by the respondents, wherein it is stated as follows: The first respondent has passed the impugned order after following the principles of natural justice. If the petitioner is aggrieved against the same, they have to file only an appeal and not a writ petition. The question whether the addition made by the respondent is justifiable or not is an issue to be agitated on merits after letting in evidence. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the royalty payment made by the petitioner to their foreign contracting party, namely Regen at Cyprus. It is seen that the Assessing Officer referred the matter to the Transfer Pricing Officer to consider the issue relating to royalty payment, who in turn, seems to have passed some adverse order against the petitioner. Thereafter, the Assessing Officer, based on such order of the Transfer Pricing Officer, passed a draft assessment order. The petitioner filed their objection against the said draft assessment order before the first respondent by raising several objections, out of which, three primary objections, as stated supra, were highlighted for the consideration of the first respondent. It is seen that in respect of assessment years 2011....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ssed. On the other hand, the petitioner also filed an application under Rule 13 seeking for rectification of the very same order on 25.09.2017 by placing reliance on the order passed by the Income Tax Appellate Tribunal dated 17.08.2016. Thus, according to the petitioner, as per the said order of the Appellate Tribunal, the first respondent has to pass an order in respect of the present assessment year as well in favour of the petitioner. 8. There is no dispute to the fact that the said application filed by the petitioner under Rule 13 is pending and not yet disposed of. It is also not in dispute that before passing the present impugned order, the petitioner has already filed such application on 09.10.2017. When such application was alre....