Bhagyanagar India Ltd., Sec-bad, Secunderabad V. DCIT, Circle-1(2), Hyd, Hyderabad

MA 106/Hyd/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8637 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-11-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 10-11-2022
• Assessment Year: misc
• Appeal Filed On: 07-06-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Rule 8D; Set aside
• Section: 14A; 254(2)

Judgement Text

आयकर अपील य अ धकरण , हैदराबाद पीठ म IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER व.आवे.सं / M.A. No. 106/Hyd/2022 (Arising out of ITA No. 1080/Hyd/2016) ( नधा रण वष / Assessment Year: 2010-11 ) Bhagyanagar India Ltd. H.No.1-7-14 to 19, 5 th Floor Surya Towers, S.P.Road Secunderabad-500 003 [PAN : AAACB8963C] Vs Deputy Commissioner of Income Tax,Circle-1(2), Hyderabad (आवेदक / Applicant) ( यथ / Respondent) नधा रती वारा / Assessee by: Shri K.C.Devdas, CA राज व वारा / Revenue by: Shri Ajith Kumar Laskar, Sr.AR स ु नवाई क तार ख/Date of hearing: 11/11/2022 घोषणा क तार ख/Pronouncement on: 11/11/2022 आदे श / ORDER PER K. NARASIMHA CHARY, JM: This Miscellaneous Application is filed with a prayer to recall the order dated 16/12/2021 passed in ITA No. 1080/Hyd/2016 on the plea that certain factual and legal errors crept in the order of the Tribunal. MA No.106/Hyd/2022 Page 2 of 6 2. It is the submission on behalf of the assessee that the learned Assessing Officer found that the proceeds of the FCC Bonds were fully utilized for the purpose of plant and machinery which is a business purpose, but the Tribunal noted that the proceeds of such bonds were advanced to subsidiary company. Further, out of the 150 FCC Bonds, 50 Bonds were bought back by the Bond-holder allowing a remission to the company, but the Tribunal held that the loss was incurred due to foreign exchange fluctuation and is directly related to the FCC Bonds. 3. According to the Learned AR, it was submitted that the provisions of section 28(iv) of the Income Tax Act, 1961 (for short “the Act”) have no application as it is applicable to receipt in kind but not to waiver of Bonds, but the Tribunal held that the gain arising out of foreign exchange fluctuation by redemption of Bonds was to be set-off against the gains and the balance has to be taxed as revenue receipt. He further submitted that the Tribunal did not consider the decision in Paramount Communication Ltd., ITA No. 767/Del/2014. 4. Lastly, the Tribunal should not have set aside the issue relating to the disallowance under section 14A of the Act read with Rule 8D of the Rules for verification of the computation of disallowance presented by the assessee, because it could have been done by the Tribunal itself. For these reasons, the recall of the order is sought. 5. Per contra, it is the submission of the Ld. DR is that the Tribunal considered the submissions made on either side in an elaborate manner and it is only after considering the material before it in the light of the decisions relied upon by the assessee the Tribunal returned the relevant findings and, therefore, the factual and legal errors, if any, opined by the assessee cannot be good grounds to seek recall of a well-considered order, and the remedy of the assessee against such factual and legal errors is only by way of appeal to the Hon'ble High Court. MA No.106/Hyd/2022 Page 3 of 6 6. According to the Ld. DR since there is an elaborate discussion on all the grounds, with reference to the material that was produced and the case law that was cited and since the matters were disposed of after considering the facts in detail and elaborate discussion on all issues as evident from the detailed order in question, the assessee cannot convert the relief of appeal into the relief of recall of the order. He relied upon the decision of the Hon’ble Apex Court in the cases of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 7. We have gone through the record in the light of the submissions made on either side. It could be seen that the Bench considered the contentions of the parties with reference to the facts and figures and the case law. After considering the material on record in detail, the order in question was passed. While dealing with the application under section 254(2) of the Act, we cannot sit in judgment over the wisdom of the Co- ordinate Bench, who thought it fit to take a view on the basis of material available on record and the contentions raised by either of the parties. Long drawn Miscellaneous Application and lengthy arguments to recall the order go anti-thesis to the theory of mistake apparent on record. 8. We, therefore, find it difficult to accept the submissions on behalf of the assessee that the order in question needs to recalled on the ground that it suffers certain factual and legal errors. We are afraid that to seek recall of the order on this ground, may amount to seek review/revise the order that has decided the issue comprehensively. 9. Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) held that in a case where a detailed order was passed by the ITAT, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act; that 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; that, therefore, as such, the order MA No.106/Hyd/2022 Page 4 of 6 passed by the ITAT recalling its earlier order 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; and that, therefore, the order passed by the ITAT recalling its earlier order is unsustainable, which deserves to be set aside. It was further observed that merely because parties might have in detail gone into the merits 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 and 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. Hon'ble Apex Court held 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, and 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. Observing so, the Hon'ble Supreme Court, in the case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order. 10. In Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal No 5041 of 2021 by order dated 04/10/2021 Hon'ble Apex Court observed that,- “12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a MA No.106/Hyd/2022 Page 5 of 6 miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].” 11. Further Hon'ble Apex Court Ghanashyam Mishra & sons Private Limited VS. Edelweiss Asset Reconstruction Company Limited & Ors in IA No. 76416/2021 (M.A. No.1166 of 2021) by order dated 17/8/2022 deprecated the growing tendency of indirectly seeking review of the orders of the Court by filing applications either seeking modification or clarification of the orders. 12. In view of this factual and legal position, we do not see any reason to recall the impugned order. This Miscellaneous Applications is accordingly dismissed. Order pronounced in the open court on this the 11 th day of November, 2022. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 11/11/2022 Thirumalesh, Sr.PS Copy forwarded to: 1. Bhagyanagar India Ltd.H.No.1-7-14 to 19, 5 th Floor, Surya Towers, S.P.Road,Secunderabad-500 003 2. Deputy Commissioner of Income Tax, Circle-1(2), Hyderabad. 3. CIT(Appeals)-1, Hyderabad. 4.Pr.CIT-1,Hyderabad. 5.DR, ITAT, Hyderabad. 6.GUARD FILE MA No.106/Hyd/2022 Page 6 of 6 TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD