|The Tax Publishers2020 TaxPub(DT) 5524 (Bang-Trib)
INCOME TAX ACT, 1961
In miscellaneous application, it was stated that Tribunal has not decided about one comparable company and assessee had not raised any ground before the Tribunal with regard to comparable company, where assessee stated that Tribunal had committed an error in not admitting the additional grounds, however, Tribunal has taken a particular view on the matter, hence, the same cannot be interfered with under section 254(2).
Appeal (Tribunal) - Power of Tribunal - Non-prosecution of appeal -
Assessee filed this miscellaneous application, wherein it was submitted that there were certain mistakes apparent from record in order passed by the Tribunal. Assessee had taken specific ground regarding exclusion by TPO of claims received, provisions written back and liability written back from operating margin. Tribunal had inadvertently not adjudicated specific grounds raised by assessee. Non-adjudication of a ground or part thereof in the order constitutes a clear mistake apparent from the record in the ITAT order in terms of section 254(2). Even while adjudicating on the specific issue of provision written back, Tribunal held that the issue of write back relates to business taken over by assessee and therefore, any profit arising out of business taken over by assessee constituted capital receipts and does not form part of operating income for calculating operating margin of the assessee. Held: It is a case, where the Tribunal has disposed of grounds in a particular manner and they cannot be interfered with under section 254(2). In clause (vi) of the miscellaneous application, it was stated that Tribunal had not decided about one comparable company. Assessee had not raised any ground before the Tribunal with regard to comparable company. It was only stated that the assessee argued before the Tribunal on the above said comparable. Since the above facts were not apparent from record, assessee's contention could not be accepted. Therefore miscellaneous application was dismissed.
Relied: Kapurchand Shrimal v. CIT (1981) 131 ITR 451 (SC) : 1981 TaxPub(DT) 971 (SC). Provisions explained:T.S. Balaram, ITO v. Volkart Brothers & Ors. 1971 AIR 2204 SC : 1971 TaxPub(DT) 355 (SC).
FAVOUR : Against the assessee.
IN THE ITAT, BANGALORE BENCH
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