Indu Projects Limited, Hyderabad V. Dy. Commissioner of Income Tax , Central Circle-2(1), Hyderabad

MA 115/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2974 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 01-09-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 20-06-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. No. (विर्धारण िर्ा / A.Y. (आिेदक / Applicant) प्रत्‍यर्थी / Respondent 83/Hyd/2022 (In ITA No.186/H/18) 2009-10 M/s.Indu Projects Ltd., Hyderabad [PAN: AAACI8812M] Dy.Commissioner of Income Tax, Central Circle-2(1), Hyderabad 113/Hyd/2022 (In ITA No.187/Hyd/18) 2010-11 114/Hyd/2022 (In ITA No.188/Hyd/18) 2011-12 115/Hyd/2022 (In ITA No.189/Hyd/18) 2012-13 विर्धाररती द्वधरध / Assessee by: Shri Mohd. Afzal, AR रधजस्‍ि द्वधरध / Revenue by: Shri Kumar Aditya, DR सुििधई की तधरीख/Date of hearing: 02/09/2022 घोर्णध की तधरीख/Pronouncement on: 02/09/2022 आदेश / ORDER PER K. NARASIMHA CHARY, J.M : By way of these Miscellaneous Applications, M/s. Indu Projects Ltd., (“the assessee”) requested the Tribunal to recall the common order dated 28/02/2022 in ITA Nos. 186, 187, 188 & 189/Hyd/2018 for the Indu Projects Limited (batch) Page 2 of 5 assessment years 2009-10, 2010-11, 2011-12 & 2012-13 on the ground that the said order was an ex-parte order virtually. 2. According to the assessee, the assessee preferred an application before the Hon'ble President, ITAT for constitution of Special Bench, brought the said fact to the notice of the Bench hearing the appeals on 06/01/2022 & 07/01/2022. The Bench, however, did not consider the said submissions in its proper perspective and despite the fact of the learned AR not prepared to present the case, the Bench proceeded with the hearing of the matter. Learned AR submits that though he was present at the time of hearing on both the days, virtually the order dated 28/02/2022 is an ex-parte order. Learned AR further submitted that since the case was decided without proper representation, the said order is amenable Rule 24 of ITAT Rules. 3. Per contra, learned DR submitted that the impugned order cannot be said to be an ex-parte order inasmuch as on both the days, namely, 06/01/2022 and 07/01/2022 the assessee was represented by Shri Mohd. Afzal, Advocate. He submits that the said fact is noted by the Bench in the order sheets as well as in paragraph No. 5 at page No. 14 of the order. If the counsel is present, but not address arguments, and the matter is decided on merits, after referring to the respective contentions in the light of law, it cannot be said that such an order is an ex-parte order and could be recalled under Rule 24 of the ITAT Rules. According to the learned DR, the case was decided on merits and the assessee does not point out the mistake apparent on the face of record, but learned AR harps on the error in judgment resulted by not considering his submissions in their proper perspective. He further submits that in a number of cases, it is held that Indu Projects Limited (batch) Page 3 of 5 error in judgment is not mistake apparent on record, and any attempt to re-appreciate the contents of the documents or the contentions of the parties would be reviewing the judgment, which is not permissible under section 254 of the Act. In this connection, he placed reliance on the decision of the Hon'ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). He submits that the ratio of the judgment equally applies to the situation where the merits of the case are considered in the presence of both the parties. 4. We have gone through the record in the light of the submissions made on either side. As could be seen from the order sheets dated 06/01/2022 and 07/01/2022 on both the occasions when the matters were heard, those were heard in the presence of Shri Mohd. Afzal, learned Advocate for the assessee and Shri Y.V.S.T.Sai, learned CIT-DR. These order sheets do not reveal that the Bench proceeded ex-parte to hear the matters. Further in the order sheet dated 06/01/2022, it was noted that the matter was part heard and at the request of Mr. Afzal, learned Advocate for assessee, those were posted to 07/01/2022. Order sheet dated 07/01/2022 reads that the appeals were called out and heard by the Bench, and the appeals were kept for orders. Further, paragraph No. 5 at Page No. 14 of the order reads that the four appeals were heard on 07/01/2022 and as a matter of fact, Mr. Afzal, learned Advocate, invited the attention of the Bench to the representation submitted by the assessee to the Hon'ble President, ITAT to constitute a Special Bench. 5. Further, learned AR does not dispute the entries marking his presence before the Bench on the dates of hearing. His statement that though he was present, virtually no arguments took place as he was not Indu Projects Limited (batch) Page 4 of 5 prepared to argue the matter in view of the pending application to the Hon'ble President, ITAT to constitute Special Bench, it is not supported by any material on record. Whatever that is available on record shows his presence at the time of hearing and the disposal of the appeals on merits. In such circumstances, by no stretch of imagination, could we say that the order dated 28/02/2022 is an ex-parte order. Recalling of such an order, in our opinion, would amount to review of the order passed after considering the merits of the case, in the presence of both the parties. With passing of the order dated 28/02/2022 in these appeals on merits, the Tribunal has become functus officio and the prayer of the assessee to recall the same is impermissible under law. Consequently, we decline to grant the prayer of the assessee. 6. In the result, the Miscellaneous Applications filed by the assessee are dismissed. Order pronounced in the open court on this the 2 nd day of September, 2022. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 02/09/2022 TNMM Indu Projects Limited (batch) Page 5 of 5 Copy forwarded to: 1. M/s. Indu Projects Limited, No.1009, Indu Fortune Fields, 13 th Phase, KPHB Colony, Hyderabad. 2. Dy. Commissioner of Income Tax, Central Circle-2(1), Hyderabad. 3. CIT(Appeals)-12, Hyderabad. 4. Pr.CIT(Central)-Hyderabad. 5. DR, ITAT, Hyderabad. 6. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD