TMI Blog2021 (1) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... tter for the above purposes, before the regular bench on 29.01.2021. Order accordingly. In the result, the rectification petition is allowed in the terms indicated above. - M.A No 204/Mum/2020 Arising out ITA No. 7312/Mum/2018 - - - Dated:- 6-1-2021 - Pramod Kumar (Vice President) And Amarjit Singh (Judicial Member)] Dhanesh Bafna for the applicant Sreenivasaraghavan Iyengar for the respondent ORDER Per Pramod Kumar, VP: 1. By way of this application, the assessee applicant seeks rectification of an inadvertent mistake alleged to have crept in our order dated 31st January 2020. 2. This mistake alleged to have crept in, is evident from the following application made by the assessee applicant:- 1. The Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edEx owned and third party aircrafts) as not liable to tax in India by applying the beneficial provisions of Article 8 of the India-USA Tax Treaty. 6. However, in almost all the assessments in previous years, the department has sought to tax Appellant's income from airline activities attributable to third party aircrafts by arbitrary enhancing the ratios in arriving at the income attributable to usage of third party aircrafts [i.e. Commercial Linehaul Charge) to Total Linehaul Charge ( TLC') ('CLC to TLC) and FedEx Global Profit Rate]. 7. With a view to avoiding protracted litigation and establish certainty in respect of its tax liability in India, the Appellant referred the matter for resolution to the Competent Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd party aircrafts and computed the income attributable to the usage of third party aircrafts by adopting the ratio of CLC to TLC as 10%. The Hon'ble DRP had reduced the ratio of CLC to TLC to 7.5%. Aggrieved by the same, the Appellant had filed an appeal before the Hon'ble ITAT. 12. During the course of the hearing before the Hon'ble ITAT, the Appellant had argued that the ratio of CLC to TLC should be restricted to 4% which is in line with the methodology prescribed in MAP resolution for AY 2007-08 and AY 2008-09 and also with stand taken by the AO in previous years. Mistake apparent from record: 13. The Appellant submits that the Hon'ble ITAT has agreed to its contention that the income attributable to us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual ratio of CLC to TLC is 2.08% and the same may be adopted; and ii. That the Appellant had suo moto adjusted the actual ratio of CLC to TLC from 2.08% to 4% and therefore, the estimated or adjusted ratio of CLC to TLC should not be more than 4%. 16. Further, it is most respectfully submitted that while concluding the order at para 7, it seems that the Hon'ble ITAT has inadvertently mentioned that the ratio of CLC to TLC should not be more than 7.s% instead of 4%. The concluding para is reproduced as under: 7. While the outcome of MAP Proceedings does not indeed find the parties for the years other than the years before the competent authority, it does indeed provide a reasonable basis particularly when it is dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed under MAP proceedings should be followed and accordingly, the order of the Hon'ble ITAT may kindly be rectified to consider the ratio of CLC to TLC ratio as 4% instead of 7.5%. 3. We have heard the rival contentions, perused the material on record and duly considered the facts of the case in the light of applicable legal position. 4. The plea of the assessee applicant is indeed correct. The Assessing Officer himself had adopted 4% as CLC/TLC ratio, and the same was, as noted by us required to be adopted this year as well. The mention of 7.5% as adjusted CLC/TLC ratio, in paragraph 7, was clearly an inadvertent error. We, therefore, deem it fit and proper to recall the matter on this point, and refix the matter for adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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