INFRES METHODEX PVT. LTD.,NEW DELHI V. ADDL.CIT, SPECIAL RANGE-4, , NEW DELHI

MA 6/DEL/2022

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 101807 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-04-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMITABH SAH
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Set aside
• Section: 254(2)

Judgement Text

" 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘C’, NEW DELHI BEFORE SH. M. BALAGANESH, ACCOUNTANT MEMBER AND SH. SUDHIR KUMAR, JUDICIAL MEMBER M.A.No. 06/Del/2022 ITA no. 1126/del/2018 Assessment Year: 2014-15 Infres Methodex Pvt. Ltd. Block-B-1, Plot No. D-7, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi- 110044 PAN No.AABCI1964R Vs Addl. CIT Special Range-4 New Delhi (APPELLANT) (RESPONDENT) Appellant by Dr. Rakesh Gupta, Advocate Sh. Somil Aggarwal, Advocate Respondent by Sh. Amitabh Sah, Sr. DR Date of hearing: 21/03/2025 Date of Pronouncement: 16/04/2025 ORDER PER SUDHIR KUMAR, JM: This miscellaneous application has moved by the assessee to recall the order of this Tribunal dated 30.09.2021 in ITA No.1126/del/2018 pertaining to A.Y.2014-15. 2 2. The contention of the assessee is that the assessee has raised the issue that the department has been consistently accepted the policy which was filed by the assessee in the form of the chart for earlier and subsequent years for showing the assessment status and assessment orders but the Tribunal has not considered these points raised by the assessee in his order. It was also submitted that Hon’ble Bench while considering the assessee’s submission explaining the scientific basis of making the provisions, an illustrative calculation sheet and reply to the adverse observations of Ld. AO which have been noted in para 5.1 at page 7 and 8 of the Hon’ble Tribunal order, has omitted to consider the points raised by the assessee. Thus, the assessee prayed that the order may please be recalled/ rectified. 3. The assessee has relied upon the following judgments: 1. 178 ITR 358 *(Bombay) 2. 174 DTR 89 (Bombay) 3. 169 DTR 369 (Bombay) 4. 168 DTR 157 (Kerala) In the case of Amore Jewels (P) ltd. vs. Deputy commissioner of income tax 169 DTR (Bom) 369 the Hon’ble Bombay High Court in pare 6 & 7 held as under: 3 6. we find that, though the order dt. 13th Feb., 2015 does render a finding that no positive material was brought on record, there is no discussion whatsoever of the various case laws detailed in the submissions which according to the petitioner clinches the issues in support of its case that the shareholding investment by the five companies was genuine. In the above view, the Tribunal ought to have allowed the petitioner’s rectification application and considered the petitioner’s appeal before it on merits, inter alia taking into account the material and case laws which have been already filed by the petitioner during the hearing leading to the order dt. 13th Feb, 2015. 7. In view of the peculiar facts of the present case, we are not only setting aside the impugned order dt 4th May,2018 but also the order dt. 13th Feb., 2015 to the extent it dismissed the petitioner’s appeal before it. This for the reason that, we find the order dt. 13th Feb., 2015 in the context of the material available on record, to be a non -speaking order as it gives no reasons to reject the appeal in the context of the decisions admittedly relied upon at the hearing by the petitioner. 4 In the case of Sony Pictures Net works India (P) Ltd. vs. Income Tax Appellate Tribunal & ors. 411 ITR 447 (Bom) the court held Appeal(Tribunal) -Rectification under section 254(2) – Non consideration of issue raised vis -a-vis remand- Tribunal ought to have dealt with the issue itself- By not dealing with an issue which is otherwise ripe for consideration and instead remanding to the TPO, the tribunal has ensured further litigation and continued uncertainty for both the revenue and the assessee- Mistake/ error is not dealing with the fundamental submission in appeal is apparent from the record, as the submission that the distribution fee was not royalty was recorded and yet not dealt with in the order- Tribunal ought to have allowed the rectification application (head note). 4. The Ld. DR strongly objected the application and submitted that under Section 254(2) of the Act the apparent mistake of the fact may be rectified, but in this case the assessee wants to review the order of the Tribunal which is not permissible as per law. 5 5. The Hon’ble Supreme Court in the case of Reliance Petro Telecom Limited in Civil Appeal No.7110 and 7112 of 2021 wherein the Hon’ble Supreme Court held as under: “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits 6 of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the respective appeals preferred by the Revenue are hereby restored.” 6. We have given a thoughtful consideration to the contents of the miscellaneous application and the submissions of the Counsel. The aforesaid decisions relied by the assessee do not help the assessee. The appeal of the revenue was decided after considering the submission made by the assessee as well as by the revenue. In our considered view what the Counsel is asking us, to review our own order in the garb of the provisions of section 254 (2) of the Act, this Tribunal does not have any power to review its own order, therefore, we do not find any 7 merit in this miscellaneous application of the assessee and the same is liable to be dismissed. 7. In the result the miscellaneous application filed by the assessee is dismissed. 8. Order announced in the open court on 16.04.2025. Sd/- Sd/- (M. BALAGANESH) (SUDHIR KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER *NEHA, Sr. PS* Date:-16.04.2025 Copy forwarded to: 1.Appellant 2.Respondent 3.CIT 4.CIT(Appeals) ` 5.DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI "