KYORI INFRASTRUCTURE PRIVATE LIMITED ,HYDERABAD V. DY. COMMISSIONER OF INCOME TAX , CIRCLE-2(1), HYDERABAD

MA 62/HYD/2022

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Kyori Infrastructure Private Limited filed a Miscellaneous Application seeking to recall an earlier Tribunal order dated 24.01.2022, which had found the assessment order erroneous and prejudicial to the interest of the revenue due to lack of enquiry by the Assessing Officer (AO). The assessee argued that the Tribunal's finding was contrary to the records, as the AO had indeed conducted enquiries. The Tribunal, however, dismissed the application, stating that the assessee was essentially seeking a review of the decision rather than rectification of a mistake apparent on record, which is not within the scope of section 254(2) of the Income Tax Act.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 716843 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2015-2016
• Appeal Filed On: 22-04-2022
• Other Referred Cases: Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax [2007] 165 Taxman 307 (SC), Vijay Solvex Ltd. Vs. ACIT, M.A.No.119/JP/2016, ITAT Jasipur Benches, Jaipur, GVPR Engineers Limited Vs. ACIT, MA Nos.58 & 59/Hyd/2022, ITAT Hyderabad Benches, Hyderabad, CIT Vs. Reliance Telecom Ltd. [2021] 133 taxmann.com 41(SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GURPREET SINGH
• Assessee Lawyers: P. MURALI MOHAN RAO
• Keywords: Capital asset; Revision of order
• Section: 142(1); 263

Judgement Text

" आयकर अपीलीय अधिकरण, हैदराबाद पीठ IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘A’ Bench, Hyderabad Before Shri Manjunatha G., Accountant Member and Shri Ravish Sood, Judicial Member M.A.No.62/Hyd/2022 (Arising out of आ.अपी.सं /ITA No.451/Hyd/2020 (निर्धारण वर्ा/Assessment Year: 2015-16) Kyori Infrastructure Private Limited Hyderabad PAN : AAECK1793R Vs. Dy.Commissioner of Income Tax Circle-2(1) Hyderabad (Appellant) (Respondent) निर्धाररती द्वधरध/Assessee by: Shri P.Murali Mohan Rao, AR रधजस् व द्वधरध/Revenue by: Shri Gurpreet Singh, DR सुिवधई की तधरीख/Date of Hearing: 08/08/2025 घोर्णध की तधरीख/Date of Pronouncement: 20/08/2025 आदेश / ORDER PER. MANJUNATHA G., A.M: By this Miscellaneous Application, the assessee seeks to recall the order of the Tribunal dated 24.01.2022, passed in ITA.No.451/Hyd/2020, for the assessment year 2015-16 by invoking the provisions of 254(2) of the Income Tax Act, 1961 (“the Act”). Printed from counselvise.com 2 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. 2. The contents of the Miscellaneous Application filed by the assessee are as follows : Printed from counselvise.com 3 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. Printed from counselvise.com 4 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. Printed from counselvise.com 5 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. Printed from counselvise.com 6 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. Printed from counselvise.com 7 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. Printed from counselvise.com 8 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. 3. The learned Counsel for the assessee, Shri P.Murali Mohan Rao, CA, referring to the petition filed by the assessee submitted that, the findings of the Tribunal in para 10 of the order dated 24.01.2022, that the AO has not carried out any enquiry on the issue, which rendered the assessment order erroneous and prejudicial to the interest of the revenue, is contrary to the material available on record, going by the assessment proceedings, including the notice issued by the AO u/s 142(1) of the Act, where the AO has called for necessary information with regard to the issue and has verified before completing the assessment. Therefore, the findings that the AO has not enquired the issue, which rendered the assessment constitute a mistake apparent on record, which can be rectified u/s 254(2) of the Act. Therefore, he submitted that the order of Printed from counselvise.com 9 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. the Tribunal needs to be recalled and in this regard he relied upon the following decisions : (i) Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax [2007] 165 Taxman 307 (SC) (ii) Vijay Solvex Ltd. Vs. ACIT, M.A.No.119/JP/2016, ITAT Jasipur Benches, Jaipur (iii) GVPR Engineers Limited Vs. ACIT, MA Nos.58 & 59/Hyd/2022, ITAT Hyderabad Benches, Hyderabad 4. The learned Sr.AR, Shri Gurpreet Singh, on the other hand submitted that, the assessee has failed to make out a case of mistake apparent on record from the order of the Tribunal dated 24.01.2022, but what is canvassed from the present M.A. is to review the decision given by the Tribunal in the given facts and circumstances of the case, which does not come under the purview of the provisions of section 254(2) of the Act. Therefore, he submitted that there is no merit in the petition filed by the assessee for recalling the order and the same needs to be dismissed. In this regard, he relied upon the decision of the Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. [2021] 133 taxmann.com 41(SC). 5. We have heard both the parties and considered the relevant contents of petition filed by the assessee u/s 254(2) of the Act, against the order of the Tribunal in ITA Printed from counselvise.com 10 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. No.451/Hyd/2020 dated 24.01.2022. We find that the Tribunal had recorded a categorical finding in para 10 of the order, in light of arguments advanced by the learned counsel for the assessee and also relevant material placed on record and came to the conclusion that, although the assessee has transferred part of the converted capital asset into stock-in-trade during the relevant financial period and the AO has failed to make any enquiry in this regard and to tax the same in the hands of the assessee partially pertaining to the part of the land sold during the year. No enquiry has been conducted by the AO during the assessment proceedings in this regard, hence, it is clear case of no enquiry. Therefore, the Ld.PCIT assumed valid jurisdiction to review the assessment order u/s 263 of the Act. In our considered view, the findings given by the Tribunal in para 10 of the order is not subject matter of rectification u/s 254(2) of the Act, because, the learned counsel for the assessee has failed to make out 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. In our considered view, the powers u/s 254(2) of the Act are limited to the extent of rectifying the prima facie mistake apparent from the record from the order of the Tribunal, for which there is no necessity of any argument or reference of any material. This principle is supported by the decision of Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. (supra), wherein, the Hon’ble Apex Court very clearly held that the powers u/s 254(2) of the Act are only to correct and/or rectify Printed from counselvise.com 11 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. 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 herein above 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. The sum and substance of the ratio laid down by the Hon’ble Supreme Court in the above case is that even in a case of erroneous findings recorded on merit, then the remedy available to the assessee is to challenge the order before the High Court, but, the said finding cannot be agitated u/s 254(2) of the Act in the guise of mistake apparent on record from the order of the Tribunal. In the present case, going by the contents of the M.A. filed by the assessee, in light of the order of the Tribunal order dated 24.01.2022, in our considered view, what is canvassed through this present M.A. is to review the decision rendered by the Tribunal in the facts and circumstances of the case and therefore, in our considered view, it is not a case of mistake apparent on record, which can be rectified u/s 254(2) of the Act. In so far as various case laws relied upon by the learned counsel for the assessee, including the decision of Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. Vs. CIT (supra), in our considered view, the facts of the above case are entirely different from the facts of the Printed from counselvise.com 12 M.A. No.62/Hyd/2022 Kyori Infrastructure Pvt.Ltd. present case. Hence, the case laws considered by the assessee are not considered. Therefore, we are of the considered view that there is no merit in the M.A. filed by the assessee u/s 254(2) of the Act. Thus, the Miscellaneous Application filed by the assessee is dismissed. 6. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the Open Court on 20th August, 2025. Sd/- Sd/- (RAVISH SOOD) JUDICIAL MEMBER (MANJUNATHA G.) ACCOUNTANT MEMBER Hyderabad, Dated 20th August, 2025 L.Rama, SPS Copy to: S.No Addresses 1 M/s Kyon Infrastructure Pvt.Ltd. C/o P.Murali & Co., CA, 6-3-655/2/3, Somajiguda, Hyderabad 2 The DCIT, Circle-2(1), Hyderabad 3 The Pr.CIT, Hyderabad 4 The DR, ITAT Hyderabad Benches 5 Guard File By Order Printed from counselvise.com "