TMI Blog2018 (10) TMI 1824X X X X Extracts X X X X X X X X Extracts X X X X ..... overseas AE as a tested party‟ had been referred to by the Tribunal at Page 9- Para 4.2A , however the same thereafter was not followed by an adjudication of the issue on merits. We thus, in terms of our aforesaid observations are of the considered view, that the non-adjudication of the aforesaid Ground of appeal no. 5 has rendered the order of the Tribunal as suffering from a mistake, which being glaring, patent, apparent and obvious from record, thus making the same amenable for rectification u/s 254(2) of the Act. In terms of our aforesaid observations the order passed by the Tribunal u/s 254(1) is recalled, for the limited purpose of adjudicating the Ground of appeal no. 5 . Recall the order passed by the Tribunal u/s 254(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid order, submitted that the assessee had by way of a Ground of appeal No. 5 contended that as regards the import transactions of the assessee applicant, the foreign associate enterprise (for short AE‟) should be taken as the tested party‟. It was the contention of the ld. A.R, that it was submitted before the Tribunal that the issue was covered by the assesses own case for the earlier year i.e. A.Y 2007-08, wherein the Tribunal while admitting the additional ground of appeal had observed that there was no bar in selecting a foreign AE as the tested party , provided the foreign AE is the least complex entity and reliable and accurate data on comparability is available for benchmarking purposes. Accordingly, it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the assessee and contentions as regards the same were raised by both the parties before the Tribunal, which though had been referred to by the Tribunal while disposing off the appeal, however, inadvertently the said ground of appeal relating to selection of the overseas AE as the tested party had remained omitted to be adjudicated upon. 4. Per contra, ld. Departmental Representative (for short D.R‟) did not controvert the aforesaid submissions raised by the Ld. A.R before us. 5. We have heard the authorized representatives of both the parties, perused the order of the Tribunal passed under Sec. 254(1) of the Act, and the orders of the lower authorities. We are persuaded to subscribe to the contention of the ld. A.R, tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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