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2014 (1) TMI 1861 - ITAT MUMBAIRectification u/s 254 - Foreign party/AE to be a tested party for determination of ALP - contention of the A.R that the TPO has not considered the contention of the assessee that foreign party can be a tested party - jurisdiction of the Tribunal and scope of Section 254(2) - HELD THAT:- When the ALP determined by the assessee was rejected by the TPO on the ground that it is not as per the provisions of Section 92, this itself shows that the computation of the ALP by considering the foreign party as tested party was found not as per the provisions of Section 92. Therefore, we do not find any merit in the said contention of the assessee. The commercial/financial effect of an international transaction in the context of the assessee/taxpayer has to be compared with the finance/commercial outcome if the same transaction would have been carried out by the assessee with unrelated third party. In the matter of Transfer Pricing and determination of ALP which is factual in nature the principle of consistency or res judicata is not applicable until and unless the facts and circumstances governing the situation and legal position are identical in each case. Once the issue has been decided on merits by considering the relevant facts and material then the same cannot be reviewed in the garb of rectification of mistake u/s 254(2). The Tribunal cannot re-evaluate or re-appreciate the evidence and facts in the proceedings u/s 254(2). Only a mistake which is wide apparent, manifest and patent on the face of the order can be rectified u/s 254(2) and not something which can be involved serious circumstances of disputes of question of facts or law can be established by long drawn process of reasoning on the point. Relief sought in the Miscellaneous Application would certainly amount to review of earlier order which is beyond the jurisdiction of the Tribunal and scope of Section 254(2) - Decided against assessee
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