ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE - 1, VISAKHAPATNAM V. M/S. NEKKANTI SEA FOODS LTD., VISAKHAPATNAM

MA 39/VIZ/2023

AI Insights

The case involves the Revenue's Miscellaneous Application seeking rectification of the Tribunal's earlier order which dismissed the Revenue's appeal against the CIT(A)'s decision favoring M/s. Nekkanti Sea Foods Limited. The Revenue contended that a subsequent Supreme Court decision in M/s. Saraf Exports, which favored the Revenue on a similar issue, should have been considered by the Tribunal. However, the Tribunal noted that the Supreme Court's decision was issued after their original order, and thus, they were not bound to follow it at that time. The Tribunal dismissed the Miscellaneous Application, citing that the finality of their earlier order could not be disturbed by a later Supreme Court judgment.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 107976 (ITAT-VISAKHAPATNAM)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-03-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2018-2019
• Other Referred Cases: M/s. Saraf Exports in Civil Appeal No. 4822/2022, Beghar Foundation vs. Justice K.S. Puttaswamy, DCIT vs. ANI Integrated Services Ltd
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA VILLURI
• Assessee Lawyers: PAWAN CHAKRAPANI
• Section: 80IB

Judgement Text

"आयकरअपीलीय अधिकरण, धिशाखापटणम पीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री क े नरधिम्हा चारी, न्याधयक िदस्य एिं श्री एि बालाक ृष्णन, लेखा िदस्य क े िमक्ष BEFORE SHRIK NARASIMHA CHARY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER M.A. NO: 39/Viz/2023 (In आयकरअपीलसं./ I.T.A. 158/Viz/2022) (ननधधारणवर्ा/ Assessment Year: 2018-19) Asst. Commissioner of Income Tax, Central Circle-1, Visakhapatnam. Vs. M/s. Nekkanti Sea Foods Limited, Visakhapatnam-530045. PAN: AAACN4664J (अपीलधथी/ Appellant) (प्रत्यथी/ Respondent) अपीलधथीकीओरसे/ Assessee by : Sri Pawan Chakrapani, AR प्रत्यधथीकीओरसे/ Revenue by : Dr. Aparna Villuri, Sr. AR सुनवधई की तधरीख/ Date of Hearing : 28/02/2025 घोर्णध की तधरीख/Date of Pronouncement : 07/03/2025 O R D E R PERS. BALAKRISHNAN, Accountant Member : This Miscellaneous Application is filed by the Revenue seeking rectification of the order of the Tribunal passed in ITA No. 158/Viz/2022 (AY: 2018-19), dated 17/03/2023. 2. Brief facts pertaining to the main appeal are that the assessee M/s. Nekkanti Sea Foods Limited is engaged in the business of export of frozen shrimp and other sea foods. The assessee company filed its return of income for the AY 2018-19 2 declaring a total income of Rs. 102,53,82,880/-. During the course of scrutiny proceedings, it was noticed by the Ld. AO that the assessee-company had claimed an amount of Rs.73,58,97,729/- towards deduction U/s. 80IB of the Act. After verification of the assessee’s claim, the Ld. AO disallowed the deduction claimed to the extent of Rs. 25,66,21,149/- and Rs.15,46,73,265/- being attributable to receipts from Merchandise Exports from India Scheme (MEIS) and duty Draw Back respectively aggregating to Rs. 41,12,94,414/- by holding that the said receipts are not in the nature of income derived from the eligible industrial undertaking. On appeal, the Ld.CIT(A) allowed the assessee’s appeal by relying on the decision of the ITAT in the assessee’s own case in ITA No. 156/Viz/2021 (AY: 2017-18), dated 06/06/2022. Aggrieved by the decision of the Ld. CIT(A), the Revenue filed an appeal before the Tribunal vide ITA No. 158/Viz/2022. The Tribunal, after hearing both the sides and on perusal of the material available on record, dismissed the Revenue’s appeal vide order dated 17/03/2023. 3. Now, vide the present Miscellaneous Application the Revenue submits that the Hon’ble Supreme Court has adjudicated an identical issue arose in the case of M/s. Saraf 3 Exports in Civil Appeal No. 4822/2022, dated 10/04/2022 (SLP© No. 17539 of 2016) in favour of the Revenue. 4. Before us, the Ld. Departmental Representative submits that since the facts of the assessee’s case involving the claim U/s. 80IB towards receipts from Merchandize Exports from India scheme and Duty Draw Back are similar to that of the case decided by the Hon’ble Supreme Court in the case of M/s. Saraf Exports (supra), there is a mistake apparent on record in the order of the Tribunal since the Tribunal has not followed the binding decision of the Hon’ble Supreme Court in the case of M/s. Saraf Export (supra) while dismissing the Revenue’s appeal in ITA No. 158/Viz/2022. Therefore, the Ld. DR prayed for passing suitable orders as the Tribunal deemed fit. 5. On the other hand, the Ld. Authorized Representative (“Ld.AR”) submitted that the decision of the Hon’ble Supreme Court in the case of M/s. Saraf Exports (supra) was passed on 10/04/2023 whereas the Tribunal has passed the order in the case of the assessee (ITA No. 158/Viz/2022, AY:2018-19) on 17/03/2023. The Ld. AR further submitted that since the said decision of the Hon’ble Supreme Court in the case of M/s. Saraf Exports (supra) has not been passed at the time of passing of the 4 Tribunal order in case of the assessee, there is no binding on the Tribunal to follow the subsequent decision / judgment. To substantiate his submission, the Ld. AR relied on the decision of the Hon’ble Supreme Court in the case of Beghar Foundation vs. Justice K.S. Puttaswamy reported in (2021) 123 taxmann.com 344 (SC). The Ld. AR also relied on decision of ITAT, Mumbai Bench in the case of DCIT vs. ANI Integrated Services Ltd in MA No. 167/Mum/2023, dated 29/05/2024 wherein under identical circumstances, the Tribunal dismissed the MA filed by the Revenue. 5. We have heard both the sides and perused the material available on record as well as the order of the Tribunal and decisions quoted by both the Ld. Counsels. In the case of the assessee, the Tribunal has passed the order on 17/03/2023 wherein the decision of the Supreme Court in the case of M/s.Saraf Exports (supra) was dated 10/04/2023. Therefore, it is clear that the Tribunal passed order much prior to the decision of the Supreme Court in the case of M/s. Saraf Exports (supra). Under these circumstances, we find merit in the argument of the Ld. AR that the order of the Tribunal cannot be recalled / rectified based on the subsequent judgment of the Hon’ble 5 Supreme Court when the order of the Tribunal had attained finality between the parties. It is out of place to mention that observations of the Hon’ble Supreme Court (constitutional Bench) in the case of Beghar Foundation vs. Justice K.S. Puttaswamy reported in (2021) 123 taxmann.com 344 (SC) wherein the Hon’ble Supreme Court has held has under: “4. The present review petitions have been filed against the final judgment and order dated 26/9/2018. We have perused the review petitions as well as the grounds in support thereof. In our opinion, no case for review of judgment and order dated 26/09/2018 is made out. We hasten to add that change in the law or subsequent decision / judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed.” 6. We further observed that based on this judgment of the Hon’ble Supreme Court in the case of Beghar Foundation (supra), the Mumbai Bench of the Tribunal vide MA No. 167/Mum/2023 (AY: 2019-20), dated 29/05/2024 has dismissed the Miscellaneous Application filed by the Revenue. Further, we have also observed that while deciding the MA, the ITAT Mumbai has also relied on various decisions. Therefore, we have no hesitation to come to a conclusion that since the order of the Tribunal, dated 17/03/2023 (supra) cannot be recalled based on the subsequent judgment of the Hon’ble Supreme Court as by virtue of the order of the Tribunal, the issue had attained finality 6 between the parties. Thus, the Miscellaneous Application filed by the Revenue is dismissed. 7. In the result, Miscellaneous Application filed by the Revenue is dismissed. Pronounced in the open Court on 07th March, 2025. Sd/- Sd/- (श्रीक ेनरधिम्हाचारी) (एि बालाक ृष्णन) (K NARASIMHA CHARY) (S.BALAKRISHNAN) न्याधयकिदस्य/JUDICIAL MEMBER लेखािदस्य/ACCOUNTANT MEMBER Dated :07/03/2025. OKK - SPS आदेशकीप्रनतनलनपअग्रेनर्त/Copy of the order forwarded to:- 1. ननधधाऩरती/ The Assessee–M/S. Nekkanti Sea Foods Limited, D.No. 3- 16/3, Ocean Drive Layout, Gudlavani Palem, Sagar Nagar, Beside Zoo Park Back Gate, Visakhapatnam, Andhra Pradesh-530017. 2. रधजस्व/The Revenue –Asst. Commissioner of Income Tax, Central Circle-1, 5th Floor, Direct Taxes Building, Sector-8, MVP Double Road, Visakhapatnam-530017, Andhra Pradesh. 3. The Principal Commissioner of Income Tax, 4. आयकरआयुक्त (अपील)/ The Commissioner of Income Tax 5. नवभधगीयप्रनतनननध, आयकरअपीलीयअनधकरण, नवशधखधपटणम/ DR,ITAT, Visakhapatnam 6. गधर्ाफ़धईल / Guard file आदेशधनुसधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam "