ITO, INTERNATIONAL TAXATION-1, HYDERABAD V. SYED GULAM MOHIUDDIN, HYDERABAD

MA 45/HYD/2024

AI Insights

The case involves the Income Tax Officer (International Taxation)-1, Hyderabad, as the appellant, and Shri Syed Gulam Mohiuddin, the respondent. The Revenue filed a Miscellaneous Application challenging the Tribunal's earlier decision which quashed the assessment order for the Assessment Year 2017-18. The Revenue argued that the Tribunal erred by not considering the overriding effect of Section 144C over other provisions, particularly in relation to the time limits for passing re-assessment orders. The Tribunal, however, found that the Revenue's application sought a review of the decision rather than correction of a mistake, leading to the dismissal of the petition.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 29837 (ITAT-HYDERABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2017-2018
• Other Referred Cases: Commissioner of Income Tax vs. M/s. Reliance Telecom Limited
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR ADITYA
• Assessee Lawyers: P. MURALI MOHAN RAO
• Keywords: Transfer pricing
• Section: 147; 254(2); 153; 144C; 92C

Judgement Text

" आयकर अपीलीय अिधकरण, हैदराबाद पीठ मŐ IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”, HYDERABAD BEFORE SHRI VIJAY PAL RAO, VICE PRESIDENT AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER MA No.45/Hyd/2024 (In ITA No.136/Hyd/2023) Assessment Year: 2017-18 ITO (International Taxation)-1, Hyderabad. Vs. Shri Syed Gulam Mohiuddin, Hyderabad. PAN No. DECPM0365H (Appellant) (Respondent) Assessee by: Shri P. Murali Mohan Rao, AR Revenue by: Shri Kumar Aditya, Sr. AR Date of hearing: 17/01/2025 Date of pronouncement: 21/01/2025 O R D E R PER G. MANJUNATHA, A.M: The Revenue has filed the present Miscellaneous Application U/s 254(2) of the Income Tax Act, 1961 (in short “the Act”) against the order of the Tribunal dated 03/06/2024 in ITA No. 136/Hyd/2023 relevant to the AY 2017-18. 2 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 2. The Revenue has narrated the facts of the case and mistakes stated to be apparent on record from the order of the Tribunal dated 03/06/2024 in ITA No. 136/Hyd/2023 and relevant contents of the Miscellaneous Petition filed by the Revenue are reproduced as under: 3 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 4 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 5 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 6 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 7 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 8 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 9 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 3. The learned Senior DR Shri Kumar Aditya, appearing for the Revenue, referring to Miscellaneous Petition filed by the Assessing Officer, submitted that there is an apparent mistake in the order of the Tribunal dated 03/06/2024 in ITA No. 136/Hyd/2023 inasmuch as the Tribunal quashed the assessment order passed by the Assessing Officer by considering the provisions of section 153(4) of the Act, even though the provisions of section 144C of the Act is having overriding effect 10 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin on other provisions of the Act which is evidence from the non- obstante clause used by the Legislature. The learned Sr. DR further referring to the provisions of section 144C(13) of the Act submitted that if the Revenue accepts the order of the Tribunal on this issue, then, all the orders passed by the Assessing Officer in consequent to the order passed by the learned DRP becomes time barred and this is not the intent of the Legislature. Therefore, the learned Sr. AR, referring to certain judicial precedents on the Rules of Interpretation, submitted that non- consideration of non-obstante clause used in section 144C while rendering the decision on the issue of limitation provided for completion of re-assessment order U/s. 147 of the Act constitutes a mistake apparent on record which needs to be rectified U/s. 254(2) of the Act. 4. On the other hand, the learned Counsel for the assessee, Shri P. Murali Mohan Rao, submitted that there is no mistake in the order of the Tribunal dated 03/06/2024 in ITA No. 136/Hyd/2023 as claimed by the Revenue in their Miscellaneous Petition filed U/s. 254(2) of the Act but, what is sought through their present Miscellaneous Petition is reviewing the decision 11 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin rendered by the Tribunal in the given facts and circumstances of the case and also the position of law as enumerated U/s. 153 of the Act. Therefore, there is no merit in the Miscellaneous Petition filed by the Revenue and same needs to be dismissed as not maintainable. 5. We have heard both the parties and considered the contents of Miscellaneous Petition filed by the Revenue against the order of the Tribunal in ITA No. 136/Hyd/202, dated 03/06/2024 and we find that the Revenue fails to make a case of mistake apparent on record which can be rectified U/s. 254(2) of the Act. We further noted that the Tribunal has decided the issue of limitation provided for passing re-assessment order U/s. 147 of the Act in light of the time limits provided U/s. 153(2) r.w.s 153(4) of the Act and held that in the absence of specific extension of due date for passing re-assessment order in case of Non-Resident Individuals like in the provisions of section 154(4) provided for a assessee who is subjected to proceedings U/s. 92CA of the Act, the time limit provided U/s. 153(2) needs to be adhered and consequently, the assessment order passed by the Assessing Officer beyond the time limit provided U/s. 153(2) is 12 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin barred by limitation. The Tribunal while deciding the issue has considered the provisions of section 144C r.w.s 153 of the Act and came to the conclusion that the limitations provided U/s. 153 prevails over the limitation provided U/s. 144C of the Act. Further, there is no specific provision for completing the re- assessment in the case of Non-Resident Individuals where there is no reference to the Transfer Pricing Officer U/s. 92C of the Act. Although the Revenue challenged the said findings of the Tribunal in light of the provisions of section 144C of the Act and argued the case in light of the Rule of Interpretation and also took support from certain judicial precedents, in our considered view, the Miscellaneous Petition filed by the Revenue seeking recalling of the order of the Tribunal amounts to ‘review of the decision rendered by the Tribunal’ in the given facts of the case but, not a case of prima facie mistake apparent on record from the order of the Tribunal which can be rectified U/s. 254(2) of the Act. This legal position is supported by the decision of the Hon’ble Supreme Court in the case of Commissioner of Income Tax vs. M/s. Reliance Telecom Limited wherein it has been clearly held that “the powers U/s. 254(2) of the Act are only to 13 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin 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”. 6. In this view of the matter and considering the facts and circumstances of this case and also respectfully following the said decision of the Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited (supra), we are of the considered view that the power of the Tribunal U/s. 254(2) of the Act is limited to an extent of only to correct and / or rectify the mistake apparent on record and not beyond that. In the present Miscellaneous Petition filed by the Revenue, we are of the considered view that the Revenue seeks to review the decision rendered by the Tribunal and thus, the Miscellaneous Petition filed by the Revenue U/s. 254(2) of the Act is not maintainable. Hence, the Miscellaneous Petition filed by the Revenue against the order of 14 MA No. 45/Hyd/2024 ITO (Int. Taxation)-1 vs. Syed Gulam Mohiuddin the Tribunal dated 03/06/2024 in ITA No. 136/Hyd/2023 is dismissed. 7. In the result, Miscellaneous Petition filed by the Revenue is dismissed. Order pronounced in the Open Court on 21st January, 2025. Sd/- Sd/- (VIJAY PAL RAO) VICE PRESIDENT Sd/- (MANJUNATHA. G) ACCOUNTANT MEMBER Hyderabad, dated 21/01/2025 OKK/spc Copy to: S.No Addresses 1 Shri Syed Gulam Mohiuddin C/o. P. Murali & Co.,CAs, 6-3- 655/2/3, Somajiguda, Hyderabad-500082. 2 Income Tax Officer (International Taxation)-1, Aayakar Bhavan, Opp: LB Stadium, Basheerbagh, Hyderabad-500004. 3 DRP-1, Kendriya Sadan, 4th Floor, C Wing, Bengaluru-560034. 4 Pr. CIT, Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File By Order "