Pavitravati Greenfields Private Limited, Hyd, Hyderabad V. DCIT, Central Circle-3(2), Hyd, Hyderabad

MA 109/Hyd/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8635 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(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: 09-06-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Set aside
• Section: 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. 109/Hyd/2022 (Arising out of ITA No. 708/Hyd/2016) ( नधा रण वष / Assessment Year: 2008-09 ) M/s.Pavitravati Greenfields Private Limited Fortune Monarch Mall 3 rd Floor, #306, Plot No.707-709 Jubilee Hills, Road No.36 Hyderabad [PAN : AAECP0216E] Vs Assistant Commissioner of Income Tax, Central Circle-3(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 04/01/2022 passed in ITA No. 708/Hyd/ 2016 on the plea that certain submissions made on behalf of the assessee were not properly been appreciated by the Bench by sheer oversight and inadvertence. MA No.109/Hyd/2022 Page 2 of 5 2. It is submitted by the Learned AR that the appeals were heard on 06/10/2021 and the order was pronounced on 04/01/2022, but in the meanwhile, on 05/11/2021, the assessee filed the written submissions. According to the learned AR, that the issue relating to the disallowance of interest was discussed in detail in the written submissions and it was never the submission on behalf of the assessee that M/s. SCSL was involved in any scandal. He submits that the Bench, however, noted that though the group company M/s. SCSL has involved in scandal, the assessee never advanced any loan to them. He further submitted that it would not be appropriate to say that M/s. SCSL was involved in a big financial scandal while admitting that the matters are pending in various courts and to that extent, the Tribunal fell in error in referring to the scandal which is not germane to the grounds raised by the Department. According to the learned AR, the genuineness of the amount advanced to group companies of assessee cannot be termed as ‘doubtful’ as the amounts were advanced by account payee cheques and were accepted by the Department as ‘genuine loan’. 3. Per contra, it is the submission of the Ld. DR that neither the DR nor the Members constituting the present Bench were present when the arguments in the appeal took place. It is therefore, not known what was argued on the day of hearing apart from what was to be found in the written submissions. Further, the order in question shows that it is a well- considered order and recorded the proceedings that took place on the date of hearing. Merely because certain aspects of the order are not to the liking of the assessee, the same cannot be valid grounds to recall a well considered order. He further submitted that the factual or legal errors if any could be canvassed by the assessee only by way of appeal not by way of applications under section 254(2) of the Act. 4. Ld. DR, therefore, submits that there is an elaborate discussion on all the grounds, but in a consolidated way, and since the matters were disposed of after considering the facts in detail and elaborate discussion MA No.109/Hyd/2022 Page 3 of 5 on all issues as evident from the order in question. 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). 5. We have gone through the record in the light of the submissions made on either side. Order in question is a detailed order running into 14 pages discussing in detail the facts and also the case law submitted by way of compilation of case law. The order at pagraph No. 7 in detail deals with the submissions advanced on behalf of the assessee. It also refers to the advances given to M/s. SCSL and proceeded to decide the issue in the light of the provisions under section 36(1)(iii) of the Act. It also referred to the paper book in respect of the details of financial charges and also the financial statements. In these circumstances it cannot be said that the Bench did not consider the submissions on behalf of the assessee. So far as the scandal relating to M/s. SCSL is concerned, the observation of the Tribunal is that it is a part of submission. We do not know what had happened on the day of hearing. 6. On the face of this factual position, we find it difficult to accept the submissions on behalf of the assessee that the Tribunal did not consider the written submissions filed on behalf of the assessee. 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. 7. 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 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 MA No.109/Hyd/2022 Page 4 of 5 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. 8. 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 miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in MA No.109/Hyd/2022 Page 5 of 5 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”].” 9. 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. 10. In view of this factual and legal position, we do not see any reason to recall the order in question. Miscellaneous Application 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. M/s.Pavitravati Greenfields Private Limited,Fortune Monarch Mall 3 rd Floor, #306, Plot No.707-709,Jubilee Hills, Road No.36,Hyderabad 2. Assistant Commissioner of Income Tax, Central ,Circle-3(2), 3. CIT(Appeals)-12, Hyderabad. 4.Pr.CIT(Central),Hyderabad. 5.DR, ITAT, Hyderabad. 6.GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD