TMI Blog2018 (9) TMI 1637X X X X Extracts X X X X X X X X Extracts X X X X ..... tify the same order, it is not proper to pass an order on the application filed by one party alone leaving the other application either unheard or not disposed of. Therefore, without expressing any view on the merits of the contentions raised by both parties, this Court is of the view that the present impugned order has to be set aside only for the purpose of remitting the matter back to the first respondent for considering both the applications filed under Rule 13 and pass a fresh order on merits and in accordance with law. Accordingly, the writ petition is allowed and the impugned order is set aside. Consequently, the matter is remitted back to the first respondent to hear afresh the suo motu application under Section 13 by the first r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the issue relating to royalty payment by the petitioner to Regen, Cyprus. The Transfer Pricing Officer, without considering the terms of the agreement between the petitioner and the other company, passed an order on 31.10.2016. Based on the said order, the second respondent passed a draft assessment order on 30.12.2016 and proposed to make a downward adjustment on royalty payment to the tune of ₹ 6,10,91,950/-. Being aggrieved against the said draft assessment order, the petitioner filed their objection before the first respondent under section 144(C) of the said Act. The primary objections raised by the petitioner before the first respondent are as follows: Ground 1: The Learned AO and TPO erred in making a downward adjustment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal, the Transfer Pricing Officer through the order dated 28.03.2017 had given effect to the order of the Tribunal re-calculating the royalty payment and revising downward adjustment at ₹ 42,00,000/-. Consequently, the second respondent passed their final assessment order under section 143(3) on 30.03.2017, thereby accepting the claim of the petitioner with regard to the downward adjustment of royalty payment. Subsequently, the Transfer Pricing Officer through an order dated 12.09.2017 further reduced the downward adjustment of royalty paid to ₹ 3,20,576/- for the assessment year 2011-2012. (iv) Therefore, for the impugned assessment year 2013-14 also, the first respondent ought to have followed the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not is an issue to be agitated on merits after letting in evidence. Hence, the above writ petition is not maintainable. An error which had crept in the order dated 25.09.2017 was sought to be rectified suo motu by the first respondent. The facts and circumstances existing in the year 2013-2014 were different from those existing in the years 2011-2012 and 2012-2013. The petitioner's objection to the suo motu rectification notice was considered by the first respondent and thereafter, the impugned order was passed. Therefore, the petitioner cannot contend that the factual matrix was not considered. The rectification proposed by the first respondent and the rectification application filed by the assessee are not identical. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first respondent. It is seen that in respect of assessment years 2011-2012 and 2012-2013, the very same objections were raised by the petitioner before the first respondent, which in turn, rejected those objections. Therefore, the first respondent originally by order dated 25.09.2017, rejected the objection with regard to the present assessment year 2013-2014 also on the reason that on the similar factual matrix, the panel has rejected the contentions raised by the petitioner in respect of the assessment year 2011-2012 and 2012-2013. However, the fact remains that in respect of the assessment year 2011-2012, the matter went on Appeal before the Income Tax Appellate Tribunal, which in turn, by order dated 17.08.2016 remanded the matter ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady filed such application on 09.10.2017. When such application was already filed by the petitioner and the same was taken on record, in all fairness, the first respondent ought to have considered the petitioner's application also along with its own suo motu application for rectification. In this case, it has not been done so. Needless to state that whether the facts and circumstances of the assessment years 2011-2012 and 2012-2013 on the one hand, and of the assessment year 2013-2014 on the other hand, are similar or not is the question which has to be necessarily considered and decided by the first respondent by hearing both the applications. Equally, it is also for the first respondent to consider as to whether the order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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