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2020 (12) TMI 844 - AT - Income TaxRectification of mistake - TP adjustment made in respect of interest on loan advanced by the assessee - DRP had directed the A.O. to compute interest at LIBOR rate + 500 basis point AND Tribunal directed the A.O. to determine 12 months LIBOR + 300 basis point - plea of the assessee that the assessee had sought for LIBOR rate + 150 basis point and hence the order passed by the ITAT in directing the A.O. to adopt 12 months LIBOR + 300 basis point is mistake apparent from record - HELD THAT:- We notice that the Tribunal has taken a view on this issue i.e. as against the DRP’s direction to adopt interest rate of LIBOR + 500 basis point, the Tribunal has directed the A.O. to adopt 12 months LIBOR + 300 basis point. Non-acceptance of the plea of the assessee does not amount to a mistake apparent from record. There should not be any dispute that the scope of power of rectification of mistake given to the Tribunal u/s 254(2) of the Act is limited and it is well settled proposition of law that the Tribunal is not entitled to review its order under the garb of rectification of mistake apparent from record. The decision taken by the Tribunal in respect of the rate of interest to be adopted is a conscious decision taken by the Tribunal. Since the Tribunal has taken a view on this matter, the same does not constitute mistake apparent from record within the meaning of sec. 254(2). Tribunal has not adjudicated ground No.3 relating to mistake in computing the TP adjustment after the directions given by Ld. DRP - We notice that ground no.3 is a without prejudice ground relating to transfer pricing adjustment pertaining to loans advanced to the AE. In ground no.3, the assessee is pointing out an arithmetic error committed by A.O./TPO while giving effect to the direction given by Ld DRP. In fact, this ground does not require separate adjudication, since the Tribunal has already modified the directions given by Ld DRP. Hence the ground no.3 urged by the assessee shall become infructuous, while giving effect to the order passed by the Tribunal.Accordingly, the decision rendered by the Tribunal on ground no.2 urged by the assessee would take care of ground no.3 also. Disallowance made u/s 35(2AB) - Tribunal, after considering the facts relating to the issue, has restored the same to the file of the A.O for examining it afresh in the light of order passed by Hon’ble Karnataka High Court, i.e., the AO should take into account the observations made by the Hon’ble Karnataka High Court while examining the issue of deduction u/s 35(2AB) of the Act. Thus, we notice that the Tribunal has taken a conscious view on this matter. Hence we find that the plea made by the assessee by expressing that this issue cannot be restored to the file of AO for fresh examination sounds strange. In any case, we are of the view that such a plea cannot be made in the miscellaneous petition filed u/s 254(2) of the Act. Accordingly, we do not find any mistake apparent from record in respect of this issue as alleged by the assessee. Disallowance of deduction claimed by the assessee u/s 35(1)(i) - Tribunal has restored the issue relating to deduction u/s 35(1)(i) of the Act to the file of the A.O. for examining it afresh in the light of decision rendered by the coordinate bench [2015 (3) TMI 535 - ITAT BANGALORE] relating to assessment year 2008-09, meaning thereby, the A.O. is required to follow the decision rendered by the coordinate bench (referred above), if there is parity of facts on this issue. Thus, we notice that the Tribunal has taken a view on this matter also and hence, we are of the view that the order passed by Tribunal on this issue also does not suffer from any mistake apparent from record. Accordingly, we reject this plea of the assessee. Miscellaneous application filed by the assessee is dismissed.
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