Vankayalapati Kiranmayee, Hyderabad V. Income Tax Officer, Ward-15(1), Hyderabad

MA 110/Hyd/2022

AI Insights

The case revolves around a Miscellaneous Application by the assessee, Smt. Vankayalapati Kiranmayee, who sought to recall an order of the Income Tax Appellate Tribunal dated 06/01/2022. The original order had confirmed an addition of Rs. 17 lakhs to the assessee's income for the assessment year 2009-10, which the assessee contested, claiming that the Tribunal had overlooked her submissions and evidence. The Tribunal, however, found that the issue had been considered and decided upon, and any perceived oversight did not constitute a mistake apparent from the record under section 254(2) of the Income Tax Act. The Departmental Representative opposed the application, citing a Supreme Court decision that restricted the Tribunal's powers to correct errors beyond mere clerical mistakes.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133184 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 20-07-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2022
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2)

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, VICE PRESIDENT & SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. No. 110/Hyd/2022 (Arising out of ITA No. 2126/Hyd/2017) (विर्धारण िर्ा / Assessment Year: 2009-10) Smt. Vankayalapati Kiranmayee, Secunderabad [PAN : AEWPV0473L] Vs Income Tax Officer, Ward-15(1), Hyderabad (आिेदक / Applicant) (प्रत्‍यर्थी / Respondent) Assessee by: Shri K.C.Devdas, AR Revenue by: Shri Shakeer Ahamed, DR Date of hearing: 21/07/2023 Pronouncement on: 21/07/2023 आदेश / ORDER PER K. NARASIMHA CHARY, JM: By way of this Miscellaneous Application, the assessee requested the Tribunal to recall the order dated 06/01/2022 in ITA No. 2126/Hyd/2017 for the assessment year 2009-10 on the ground that due to over sight, Tribunal came to the conclusion that the CIT(A) was justified in restricting the amount to Rs. 17 lakhs without considering the submissions and evidence tendered by the assessee. According to the assessee, there is a mistake apparent from record, which may kindly be rectified as the Hon'ble Tribunal deems fit. M.A.No. 110/Hyd/2022 Page 2 of 5 2. It is the contention of the assessee before us that the assessee properly explained the source of the expenditure to the tune of Rs. 17 lakhs and it was so noted by the learned CIT(A) also at paragraph No. 17.1 of his order. Though the same thing was brought to the notice of the Bench, it missed the attention of the Bench, and, therefore, the Bench confirmed the addition to the tune of Rs. 17 lakhs also. 3. Learned DR opposed the contention of assessee and submits that mistakes apparent on the face of record alone are amenable for correction by the Tribunal in exercise of powers under section 254(2) of the Act but not the errors of fact or law in view of the decision of the Hon'ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). According to him, powers of section 254 of the Act are not available to disturb the considered opinion of the Bench in view of the decision of the Hon'ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). Lest it would amount to revision of order reviewing the conscious decision taken by the Bench. 4. We have gone through the record in the light of the submissions made on either side. On a perusal of the common order dated 06/01/2022 in ITA No. 2126/Hyd/2017, we find that at paragraph 15, the Bench adverted to the observations of the learned CIT(A) wherein the contention of the assessee as to the source of the expenditure to the tune of Rs. 17 lakhs was adverted. It clearly shows that it did not miss the attention of the Bench and it is the specific finding of the Bench that having perused the findings of the learned CIT(A) on this aspect, it was the considered opinion of the Bench that learned CIT(A) was justified in restricting the addition of Rs. 17 lakhs. 5. The question that arises for our consideration is whether any error in judgment, which is said to have been the result of non-consideration of the submissions made on behalf of the assessee in the perspective in which they were projected, would constitute an error apparent on record, so as to be recalled by the Tribunal in exercise of powers under section 254(2) of the Act. M.A.No. 110/Hyd/2022 Page 3 of 5 6. Under section 254(2) of the Act, the Tribunal may at any time within six months from the end of the month in which the order was passed, with a view to rectify any mistake apparent from record, amend any order passed by it under sub-section (1), and shall make such an amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. It is, therefore, incumbent upon the miscellaneous applicant to point out that there is mistake in the order that is apparent from the record. This aspect has been considered by the Hon'ble Apex Court in the case of Reliance Telecom Ltd. (supra). 7. In the case of Reliance Telecom Ltd. (supra), Hon'ble Apex Court 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 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 M.A.No. 110/Hyd/2022 Page 4 of 5 Hon'ble Supreme Court, in the case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order. 8. By no stretch of imagination, therefore, could we say that the order dated 06/01/2022 suffer any mistake apparent on the face of record. And any error of judgment in such order either on facts or on law is not amenable for rectification under section 254(2) of the Act, and recalling of such an order, in our opinion, would amount to review of the same, which is not permissible in view of the above observations of the Hon'ble Apex Court in the case of Reliance Telecom Ltd. (supra). Respectfully following the decision of the Hon’ble Supreme Court in the case of Reliance Telecom Ltd.(supra), we find that with passing of the order dated 06/01/2022 in ITA No. 2126/Hyd/2017 on merits, the Tribunal has become functus officio and the prayer of the assessee to reopen the same is impermissible under law. Consequently, we decline to grant the prayer of the assessee. 9. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on this the 21 st day of July, 2023. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER Hyderabad, Dated: 21/07/2023 M.A.No. 110/Hyd/2022 Page 5 of 5 Copy forwarded to: 1. Smt. Vankayalapati Kiranmayee, Plot No. 60-A, 263, Eswaripuri Colony, Sainikpuri, Secunderabad. 2. Income Tax Officer, Ward-15(1), Hyderabad. 3. Pr.CIT-7, Hyderabad. 4. DR, ITAT, Hyderabad. 5. GUARD FILE. TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD