TMI Blog2019 (9) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... ot in dispute that the mistakes rectified by the Assessing Officer are indeed covered by the scope of mistake apparent on record , rectification of these mistakes cannot be declined on the ground that there are other mistakes which would neutralize the tax impact of these mistakes. It is for the assessee to seek remedy for the mistakes apparent on record in respect of an order, but the mere existence of such mistakes, even if there be any, cannot be ground enough to decline rectification of other mistakes in the same order. The remedy for other mistakes alleged to have crept in the impugned order, which prejudice the interests of the assessee, cannot be in cancelling the rectification of mistakes which prejudice the interests of revenue; two wrongs will not make a right. We decline to negate the rectification of mistakes for this reason assigned by the assessee as well. There is no cause for interference on merits as such. No merits in grievance of the assessee- on the issue of jurisdiction as also on merits. We, therefore, confirm the impugned rectification order and decline to interfere in the matter. - ITA No.: 3321/Ahd/15 - - - Dated:- 7-6-2019 - Pramod Kumar (Vic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the DRP disposed of these objections by, inter alia, giving certain directions to the TPO for recomputation of the ALP adjustment. As a result of these directions, the TPO recomputed the ALP adjustment and held that, upon implementing the directions of the DRP, no adjustment was required. Accordingly, a final assessment order was passed by the Assessing Officer on 29th December 2014 without any ALP adjustment. 4. The matter, however, did not rest at that. On 24th August 2015, the Transfer Pricing Officer issued a notice under section 154 pointing out that certain mistakes have crept in while giving effect to the DRP s order. It was pointed out that as against correct unadjusted and adjusted margin of 33.25% and 21.63% in respect of Spy Resources India Pvt Ltd, the TPO had adopted the figures of 15.52% and 9.42%. As a result of this factual error, the PLI of comparable was wrongly taken at 15.43% which was, for this reason, incorrectly held to be within the permissible range of + 5%. It was thus pointed out that an ALP adjustment of ₹ 1,00,30,075 was to be made in the hands of the assessee. While the assessee, in his reply dated 7th September 2015, did not di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-section (5) of Section 144C would bind even the assessee. He may of course challenge the order of the Assessing Officer before the Tribunal and take up all contentions. Nevertheless at the stage of assessment, he has no remedy against the directions issued by the DRP under sub-section (5). All these provisions amply demonstrate that the legislature desired to give an important opportunity to an assessee who is likely to be subjected to upward revision of income on the basis of transfer pricing mechanism. Such opportunity cannot be taken away by treating it as purely procedural in nature. 6. These observations are read time and again with a view to highlight the contention that the right of the assessee to approach the DRP cannot be declined by not giving a draft order, whether in the first round of proceedings and equally in the second round of proceedings. Our attention has also been invited to Hon ble Bombay High Court s judgment in the case of Dimension Data Asia Pacific Pte Ltd Vs DCIT (WP No. 921 of 2018; judgment dated t6th July 2018) in support of the same proposition. Learned counsel submits that by not first presenting the assessee with a draft re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue in dispute is with respect to the directions of the DRP itself. The assessment order, as a result of the DRP directions, cannot be taken to the DRP again. We are thus urged to confirm the approach of the Assessing Officer, and decline to interfere in the matter. Learned counsel, to sum up, reiterates his submissions once again. We have given our careful consideration to the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. 7. We find that section 253(1)(d) clearly provides that an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order ( emphasis, by underlining, supplied by us) is appealable before this Tribunal. The scheme of the Act is unambiguous. Once the DRP has given its directions, the order passed in pursuance of such directions, or rectification order in respect thereof, can only be appealed before the Tribunal. Whether the directions of the DRP have been correctly implemented ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of section 7 of the Taxation Laws (Extension to Merged States and Amendment) Act, All these observations were thus clearly a materially different context, and cannot be treated an authority in support of the proposition that a rectification order must be treated at par with the assessment order. An order being passed in the course of assessment proceedings, in any case, is one thing, and an order of assessment quite another. It is also elementary that, as observed by Hon ble Supreme Court in the case of CIT Vs Sun Engineering Works Pvt Ltd [(1992) 198 ITR 297 (SC)], which is oft quoted, It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a latter case, the Courts must carefully try to ascer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel does not have much to say. He fairly accepts that the mistakes pointed out in the rectification order are indeed correct. He, however, hastens to add that there are certain other mistakes in the same order, and if the Assessing Officer was to rectify the mistakes in question, he ought to have rectified the other mistakes as well. He submits that the assessee has duly pointed out those other mistakes in the TPO s order giving effect to the directions of the DRP, and that once those mistakes are rectified, no ALP adjustments will be warranted. What is before us, however, is the challenge to the rectification order passed by the Assessing Officer, and we see no infirmity, jurisdictional or on merits, in respect of the same. 9. Learned counsel has very vehemently contended that rectification of mistake apparent on record must be done in totality and not in piece meal, and that it cannot be open to the Assessing Officer to carry on the exercise of rectification only to the extent it is in his interest to do so. It is submitted that these mistakes were pointed out to the TPO, in the course impugned proceedings, but the TPO did not even deal with the same. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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