CORTEVA AGRISCIENCE SERVICES INDIA PRIVATE LIMITED,HYDERABAD V. DCIT, CIRCLE-17(1), HYDERABAD

MA 44/HYD/2024

AI Insights

The case involves M/s. Corteva Agriscience Services India Pvt. Ltd. filing a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961, to modify an earlier order of the ITAT which allegedly did not adjudicate several grounds of appeal and wrongly accepted concessions not made by the assessee. The Tribunal, after reviewing the affidavit and submissions, found that the assessee had indeed not pressed the other grounds during the original hearing and that the comparability of the companies in question had been correctly adjudicated based on the merits and existing legal precedents.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 28651 (ITAT-HYDERABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-02-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2011-2012
• Other Referred Cases: Bhagwan Mahaveer Educational Society Vs. Rajesh Jindal & Ors, State of Maharashtra v. Ramdas Shrinivas Nayak & Anr, Aavya India Pvt. Ltd. Vs. DCIT, WSP Consultants India (P) Ltd. Vs. DCIT, CIT Vs. Reliance Telecom Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARPREET SINGH AJMANI
• Section: 254(2); 10B

Judgement Text

" आआआआ आआआआआआ आआआआआआ, आआआआआआआआआआआ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A’ Bench, Hyderabad BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND SHRI MADHUSUDAN SAWDIA, ACCOUNTANT MEMBER M.A. No.44/Hyd/2024 (In आ.अपी.सं/ITA No.253/Hyd/2017) (निर्धारणवर्ा/Assessment Year:2011-12) M/s. Corteva Agriscience Services India Pvt. Ltd., (Formerly known as E.I. DuPont Services Centre India Pvt. Ltd.), Hyderabad. PAN: AACCE0509M Vs. Dy. Commissioner of Income Tax, Circle-17(1), Hyderabad. (Appellant) (Respondent) निर्धाररतीद्वधरध/Assessee by: Shri Harpreet Singh Ajmani, Advocate, Shri Pulkit Pandey, Advocate and Shri Rohit Mittal, CA रधजस् वद्वधरध/Revenue by:: Dr. Sachin Kumar, for Shri Kumar Aditya, SR-DR सुिवधईकीतधरीख/Date of hearing: 17/01/2025 घोर्णधकीतधरीख/Pronouncement: 11/02/2025 आदेश/ORDER PER MADHUSUDAN SAWDIA, A.M.: This Miscellaneous Application (“M.A.”) has been filed by M/s. Corteva Agriscience Services India Pvt. Ltd. (“the assessee”) u/s.254(2) of the Income Tax Act, 1961 (“the Act”) with a request to modify the order passed by the co-ordinate bench of ITAT in ITA No.253/Hyd/2017 dated 23.07.2024 (“impugned order”) by raising the following grounds : M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 2 a) Non-adjudication of ground nos.1 to 8 and 10 to 17 on account of a wrong concession. b) Non-consideration of decision of co-ordinate bench of Tribunal in rejecting request for exclusion of HSCC (India) Limited and Kitco Limited as comparable companies. 2. At the outset, the Learned Authorised Representative (“Ld. AR”) submitted that, the assessee has filed an Affidavit and in the Affidavit, it was mentioned that the Tribunal has not decided the ground nos.1 to 8 and other grounds on the pretext that the assessee has not pressed the said grounds. For the above said proposition, the Ld. AR had drawn our attention to the impugned order, wherein, at para no.4, it was mentioned that, the assessee is only pressing ground nos.9 and 18 of the grounds of appeal filed before us. On the basis of the affidavit, the Ld. AR submitted that, the assessee has not given any concession in the matter and therefore the Tribunal has wrongly recorded the same at para no.4 of the impugned order. 3. Per contra, the Learned Department Representative (“Ld. DR”) has submitted that, the finding recorded by the Tribunal at para no.4 is sacrosanct and the same cannot be objected by the assessee's counsel merely on the basis of some Affidavit. 4. We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. We have M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 3 perused the Affidavit filed by Mr. Rohit Mittal, C.A. on behalf of the company, wherein the Learned CA has submitted as under : M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 4 On perusal of para no.5 of the affidavit, it is abundantly clear that, the Ld. AR of the assessee has submitted that no concession has been given by the assessee in this regard. We have gone through our log book and in the log book it is categorically mentioned that the assessee is pressing ground no.9 only and in the case ground no.9 is adjudicated, the other grounds are not required to be adjudicated by the Tribunal. In view of the said submission recorded by us in our log book, it is clear that the counsel has categorically said at the time of hearing that only ground no.9 is to be adjudicated and assessee had not pressed other grounds. 4.1 Further more, we are of the opinion that, the order sheet and decision of the Tribunal cannot be tinkered with or disturbed merely on the basis of an Affidavit as the judicial proceedings in the order sheet/decision cannot be disturbed merely on the basis of Affidavit of a person, who had not argued the matter. In this context, we refer the decision of Hon'ble Delhi High Court in the case of Bhagwan Mahaveer Educational Society Vs. Rajesh Jindal & Ors, wherein relying on the decision of Hon'ble Supreme Court in the case of State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. AIR 1982 SC 1249, it was held as under : “22. Before parting, it would be appropriate to extract the following observations of the Supreme Court in State of Maharashtra v. Ramdas Shrinivas Nayak & Anr. AIR 1982 SC 1249: \"XXXXXX XXXXXX XXXXXX \" M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 5 ..........the Judges' record was conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else. The court could not launch into inquiry as to what transpired in the High Court. The court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is' incumbent, upon the party, while the matter is still fresh in the minds of the Judges, to call attention of the very judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. XXXXXX XXXXXX XXXXXX\" 23. It has been noted that no attempt has been made by the plaintiffs - not all of whom have supported the present review petition - to establish that what was recorded was without authority of their counsel. The plaintiffs have calculatedly changed the counsel; their previous counsel has not stepped forward and deposed or made any statement in support of the averments in the review proceedings. Furthermore, the basis upon which M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 6 the review proceeding has been moved is without any formal foundation. In fact, the averments made in paragraphs 4 and 5 of the review petition and apparently submissions made before the Court on 27.07.2010 were of such nature and character as to persuade the learned Judge who was hearing the petition, i.e. Rajiv Shakdher, J., not to proceed with the matter and list it before the present Bench. This conduct of the review petitioners cannot also be left without comment. The statements and submissions made R.A. No. 9418/2010, I.A. Nos. 9419/2010 & 9420/2010 IN CS (OS) 2366/2007 by the parties, and more importantly so by their counsel have to be made with responsibility and with sense of propriety and not with a view to question institutional integrity as has been attempted during the present petition. 24. The preceding discussion convinces this Court that the review petition and the allied applications are neither legally sound nor are with any factual foundation. For these reasons, the Review Petition, being R.A. No. 9418/2010 and applications, being I.A. Nos. 9419/2010 and 9420/2010 have to fail; they are accordingly dismissed.” 4.2 In the light of the above, we are of the opinion that, the Affidavit filed by the assessee alleging that the assessee has not given any confession, is without any merits and therefore the same is required to be dismissed. W may mention tht even the affidavit is filed by Shri Rohit Mittal, C.A., who had not argued the matter before the Tribunal. He had merely given his attendance without arguing the matter along with Mr. Sandeep Bansal. In fact no affidavit had been filed by Mr. Sandeep Bansal, that he had not pressed other grounds before Tribunal. Bench is certain that no other grounds except the M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 7 ground no.9 was argued by Mr. Sandeep Bansal. Since only ground no.9 was argued by Ld. AR, therefore, Tribunal had only decided the same. Accordingly, we dismiss this ground of the assessee. 5. The next ground raised by the assessee is with respect to the ground raised by the assessee pertaining to the HSCC (India) Limited (“HSCC”) and Kitco Limited (“Kitco”) and in this regard, the Ld. AR invited our attention to the order of the Tribunal at page nos.13 to 16. It was submitted that, the Tribunal while deciding the issue has not taken into account the decision of Delhi ITAT in the case of Aavya India Pvt. Ltd. Vs. DCIT 2020(3) TMI – 278 – ITAT Delhi dated Aug 30, 2019 which the Tribunal has referred to while adjudicating the comparability of the other comparable at page no.11 of its order. It was submitted that, the Tribunal is duty bound to consider the co- ordinate bench decision while rejecting the contention of the assessee and more particularly the decision of Aavya India Pvt. Ltd. Vs. DCIT (supra) and also the decision of Delhi ITAT in the case of WSP Consultants India (P) Ltd. Vs. DCIT (2018) 94 taxmann.com 705. The Ld. AR had relied upon the decision of Hon'ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd. to buttress their argument and also drawn our attention to the decision of Ahmedabad Bench of ITAT, wherein, the co-ordinate bench of the Tribunal has distinguished the decision of Hon'ble Supreme Court rendered in the case of CIT Vs. Reliance Telecom Ltd., 323 CTR (SC) 873. M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 8 6. Per contra, the Ld. DR submitted that, the power of the Tribunal, as interpreted by the Hon'ble Supreme Court in the case of Reliance Telecom Ltd. (supra) are limited and only the typographical and arithmetical error or other error which are apparent from record can only be corrected. In the present case, since the Tribunal has adjudicated the grounds on merit and held that the government company viz. Kitco and HSCC are good comparables, therefore, the order of the Tribunal, cannot be recalled merely on the basis of submission of the assessee as the Tribunal has failed to take into account the decision cited by the assessee. 7. We have heard the rival contentions and also gone through the record in the light of the submissions made by either side. The Hon'ble Supreme Court in the case of Reliance Telecom Ltd. (supra), at para no.3.1 has laid down the scope of the power of the Tribunal, which is to the following effect: “3.1 We have considered the order dated 18.11.2016 passed by the ITAT allowing the miscellaneous application in exercise of powers under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013 as well as the original order passed by the ITAT dated 06.09.2013. 3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 9 the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record.” 7.1 On plain reading of the aforesaid judgement of the Hon'ble Supreme Court, it is abundantly clear that the Tribunal cannot be revisit or decide the issue afresh on merits u/s.254(2) of the Act. It was argued by the Ld. AR that the co-ordinate bench of Ahmedabad bench of ITAT, Hon'ble Delhi High Court and Hon'ble mumbai High Court have discussed the issue in detail, distinguishing the decision of Reliance Telecom Ltd.(supra). However, the law laid down by Hon'ble Supreme Court is binding on all the Courts in the country and the scope of the rectification has been very well considered and laid down by the Hon'ble Supreme Court. The argument of the assessee that the Tribunal has failed to consider the co-ordinate bench decision in the case of Aavya India Pvt. Ltd. Vs. DCIT (supra), wherein the co- ordinate bench of Delhi Tribunal has held that the government company cannot be considered as good comparable. If we look into the rule 10B of the Income Tax Rules, 1962 (“the Rules”), then, it is apparent that there is no exclusion of the government company, in the selection process and even the government company which are functionally comparable with the assessee can be considered, to be a good comparable. However, what best can be done is the adjustment M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 10 in accordance with the Rule 10B of the Rules. In the present case, nothing has been brought to our notice that the adjustments were required to be made, however, the only case of the assessee before us was that, these two companies are not comparable with that of the assessee. Quite contrary to the above, the Tribunal vide order dated 23.07.2024 has decided the issue against the assessee and held that, these two companies are functionally comparable with the assessee. Once, we have decided the issue against the assessee, it is not permissible for us to recall the order and decide the issue on merits and hold that these two companies are not comparable to the assessee. The scope and ambit of the rectification u/s.254 of the Act are very limited and narrow, and the same cannot be exercised with a view to widen the scope and to bring the present issue within the ambit of rectification. Accordingly, the application of the assessee for recalling the order is dismissed in total. 8. In the result, the M.A. filed by the assessee is dismissed. Order pronounced in the open Court on 11th Feb., 2025. Sd/- Sd/- (LALIET KUMAR) (MADHUSUDAN SAWDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad. Dated: 11.02.2025. * Reddy gp M.A. No.44/Hyd/2024 (In ITA No.253/Hyd/2017) Page 11 Copy of the Order forwarded to : 1. M/s.Corteva Agriscience Services India Pvt. Ltd., (Formerly known as E.I. DuPont Services Centre India Pvt. Ltd.), 8 & 9 Floors, Tower 2.1, Waverock Building, Sy. No.115(P), NanakramgudaVillage,Serilingampally, Hyderabad- 500 081. 2. DCIT, Circle 17(1), Hyderabad. 3. Pr. CIT-5, Hyderabad. 4. DR, ITAT, Hyderabad. 5. Guard file. BY ORDER, //True Copy// "