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2019 (11) TMI 134 - AT - Income TaxRectification u/s 254 - ALP determination - Review or rectification - HELD THAT:- Assessee is not co-operating with authorities including tribunal and now hyper technical approach of hair splitting of the appellate order dated 16.06.2017 of the tribunal is done by the assessee in this MA and raising hyper technical pleas were done to somehow wriggle out of tribunal order dated 16.06.2017 by succeeding in somehow getting the appellate order dated 16.06.2017 passed by the tribunal recalled. One more feeble plea is raised by learned counsel for the assessee that the assessee was not exactly told by the Bench as to which all agreements were to be produced before the Bench at the time of hearing of the appeal . This clearly reveals and demonstrate the desperation of the assessee to somehow get the well reasoned detailed order dated 16.06.2017 passed by the tribunal recalled under the garb of this MA. The fact of the matter is that these agreements were entered into by the assessee to undertake various transactions during the impugned ay and in order to prove its contentions that only net revenue is to be considered while computing ALP and the so called claimed passed through costs are to be reduced from gross revenue to arrive at net revenue which is to be considered for determining ALP, the onus is on the assessee to produce relevant evidences to support its contentions. The said onus never get discharged. The next attempt is made in this MA to show that tribunal order dated 16.06.2017 was passed beyond 90 days and hence this order needed to be recalled. It is admitted by the assessee that the aforesaid appellate order dated 16.06.2017 passed by the tribunal was received on 25.07.2017. Merely because the appellate order dated 16.06.2017 passed by the tribunal was received by assessee on 25.07.2017 , a presumption is drawn by the assessee of its own that the appellate order was passed by the tribunal beyond 90 days , which later rightly stood corrected by assessee of its own during the course of hearing in MA when confronted with factual matrix of the case by not pressing too far this plea during the course of hearing before the Bench of this MA. It is also observed that further pleas are raised by assessee in this MA applications on merits of the issue which are infact an attempt to get the decision of the tribunal reviewed which is beyond the purview of limited scope of Section 254(2) as it is well settled that scope of provisions of Section 254(2) is limited to correcting mistakes apparent from records and the tribunal is debarred from reviewing its own decision while deciding MA. There is no need for us to go into these pleas challenging decision of the tribunal dated 16.06.2017 on merits of the issues as it is beyond limited scope of Section 254(2) of the 1961 Act as otherwise it will lead to reviewing of its own decision by the tribunal in MA which is not permissible
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