Allowing the petition the Court held that, the law in that failure to deal with an argument does not constitute a ‘mistake apparent from the record’ does not apply to a case where a fundamental submission is omitted to be considered by the ITAT. The omission is apparent from the record and should be rectified by the ITAT. Considered .The Tribunal ought to have decided the issue of the character of distribution fees, whether royalty or not, as all the facts were available on record before it and the submissions also were made, rather than remanding the issue to the Transfer Pricing Officer. (CIT v. Ramesh Electrical Co (1993) 203 ITR 497 (Bom) (HC).)( WP No. 3508 of 2018, dt. 03.01.2019)( AY.2011-12)
Sony Pictures Networks India Pvt. Ltd. v. ITAT( 2019) 411 ITR 447/ 306 CTR 593/ 174 DTR 89(Bom)(HC),www.itatonline.org
S. 254(2):Appellate Tribunal-Rectification of mistake apparent from the record –Failure to deal with an argument does not constitute a ‘mistake apparent from the record’ does not apply to a case where a fundamental submission is omitted to be considered by the ITAT- The omission is apparent from the record and should be rectified by the ITAT .The Tribunal ought to have decided the issue of the character of distribution fees, whether royalty or not, as all the facts were available on record before it and the submissions also were made, rather than remanding the issue to the Transfer Pricing Officer. .