TaxTMI 
TaxTMI 
2020 (12) TMI 777
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....ed 22-06-2018 passed by the Tribunal in the appeal mentioned in the caption. 2. We heard the parties and perused the record. The miscellaneous application filed by the assessee reads as under:- Mistakes apparent from Record - i) The Assessee has taken specific ground no 2(b) regarding exclusion by TPO of claims received, provisions written back and liability written back from operating margin. The said ground is reproduced below:- 2 (b) -That on the facts and in the circumstances of the case the ld. CIT(A) erred in - upholding the computation of operating margin of the Appellant by the learned AO/TPO by excluding "claims received", "provisions written back", and "Liability written back" as non-operating in natu....
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....39;ble Bench committed an apparent error iii as much as these provisions pertains to own business of assessee and not attributable to business taken over by the assessee. (Kindly see Annexure "B" enclosed at page 14 to 18 of this application). This crucial fact is apparent from the record, being apparently mistaken finding the same needs to rectified u/s 254(2). iv) Ground No.2(c) - The assessee had taken a specific ground regarding non-issue of show cause notice by AO/TPO which is reproduced below - Ground no. 2(c) -That on the facts and in the circumstances of the case the ld. CIT(A) erred in-not addressing the appellant grievance in full for not providing a show cause notice by the learned AO/TPO to the appellant detail....
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.... 4 years from the end of the Financial Year in which order is passed in terms of sec. 154(7), the said application had become time barred. Therefore, a mistake has crept in the impugned order in as much as ITO is functus officio and cannot pass any order u/s 154 on the assesses application. Thus the Hon'ble bench ought to have decided this ground. It is a mistake of law that the ITO has been directed to pass an order which he is barred by law to pass. vi) The Assessee has also taken a ground with respect to certain comparables being functionally incomparable to itself. The Hon'ble ITAT has inadvertently not adjudicated on one such comparable, i.e., South India Surgical Limited. Though this ground was fully argued, ....
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.... submissions Hon'ble bench has refused to admit them without speaking order and omitting to consider the record itself. Ignoring assessee's submissions and reliance on catena of judicial precedents ("Annexure C" enclosed at page le1 to ae of this application) and passing non speaking order in this behalf constitute mistake apparent from the record in terms of sec 254(2). It is a judicially recognized obligation on ITAT to ensure a fair and proper assessment is made and assessee is accorded proper deductions and adjustments, reliance is placed on Hon'ble Supreme Court judgment in the case of Kapurchnd Shrimal 131 ITR 451. Abdication of such obligation constitutes a mistake apparent from the record. In the case o....
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....g drawn process of reasoning on points where there may be conceivably be two opinions cannot be said to be an error apparent on the face of record. A decision on a debatable point of law is not a mistake apparent from the record." 4. Based on the above discussed legal propositions, we shall now examine the petition filed by the assessee. 5. It is the submission of the assessee in clauses (i) to (v) of the miscellaneous application that grounds numbered as 2(b), 2(c), 2(h) and 2(i) have not been adjudicated on all points by the Tribunal. All the above said grounds are related to the addition made by the AO on account of transfer pricing adjustment made by the TPO. However, we notice that the Tribunal has examined Grounds numbered as....