Ved Kiran Infra Projects Private Limited, Hyderabad V. Asst. Commissioner of Income Tax, Central Circle-2(3), Hyderabad

MA 118/Hyd/2022

AI Insights

The case revolves around a Miscellaneous Application by Vedkiran Infra Projects Private Limited, seeking to recall an earlier Tribunal order due to alleged violations of natural justice and oversight of crucial documents. The assessee argued that the original hearing was unduly brief and that important documents were not considered, leading to an erroneous decision. The Departmental Representative countered that all relevant materials were duly considered and that the Tribunal's decision was based on a thorough examination of the facts and applicable law. The Tribunal, referencing the Supreme Court's decision in Reliance Telecom Ltd., concluded that it lacked the jurisdiction to recall its earlier order under section 254(2) of the Income Tax Act, as this would constitute a review of the decision, which is not allowed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133185 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 27 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: 2014-2015
• Appeal Filed On: 23-06-2022
• Other Referred Cases: ACIT vs. Subhash Reddy, Lachman Dass Bhatia Hingwals (P) Ltd. vs. ACIT, CIT Vs. Reliance Telecom Ltd.
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revision of order; 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. 118/Hyd/2022 (Arising out of ITA No. 2236/Hyd/2017) (विर्धारण िर्ा / Assessment Year: 2014-15) Vedkiran Infra Projects Private Limited, Secunderabad [PAN : AECV4030C] Vs Asst. Commissioner of Income Tax, Central Circle-2(3), 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 08/04/2022 in ITA No. 2236/Hyd/2017 for the assessment year 2014-15 on the ground that no reasonable opportunity was given and the whole matter was heard within 10 minutes, there is a gross violation of the principles of natural justice and, therefore, submits that the entire order passed by the Tribunal is totally contrary to the facts and evidence on record and as there are M.A.No. 118/Hyd/2022 Page 2 of 5 inherent mistakes, which have been overlooked by the Tribunal, may kindly be rectified. 2. The contention of the assessee before us is that the assessee filed paper book on 22/03/2021 and 07/04/2022, which contains several papers including the sale deed, agreement of sale etc., which according to the learned counsel disclosed the sale consideration as confirmed by the seller and fully explained the source as reflected in the books. His further contention is that the Bench did not consider the decision of the Co- ordinate Bench of the Tribunal in the case of ACIT vs. Subhash Reddy in ITA No. 1707/Hyd/2017, assessment year 2018-19, which was rendered by the same combination of Members. Learned AR contended that the whole matter was heard within ten minutes, without rendering reasonable opportunity to the assessee and, therefore, there is gross violation of principles of natural justice. He, therefore, prays that the order may be recalled since the impugned order was in the light of the decision of the Hon'ble Delhi High Court in the case of Lachman Dass Bhatia Hingwals (P) Ltd., vs. ACIT (2011) 330 ITR 243 (Del). 3. Learned DR vehemently contended that a perusal of the order dated 08/04/2022 clearly shows that there was deliberation on the aspects now adverted to by the assessee and as a matter of fact, the Bench considered all the relevant papers and there is nothing in the order to suggest that the papers filed by the assessee were not considered. As a matter of fact, the Bench considered the order of the learned CIT(A) in extenso. Lastly, he submits that there is nothing on record to show the time taken for hearing was not sufficient or that the Bench did not understand the gamut of litigation. He submits that the assessee would not have taken the objection as to the time taken for hearing, if the decision went in favour of the assessee. Learned DR 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). M.A.No. 118/Hyd/2022 Page 3 of 5 4. Learned DR further submits that 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. 5. We have gone through the record in the light of the submissions made on either side. Paragraph Nos. 4 to 6 clearly show that the Bench adverted to the facts of the case and also to the survey statement of the assessee here and also the CBDT circulars. There is nothing on record to show that there was violation of principles of natural justice or that the Bench did not understand the scope of litigation in this matter. There is nothing on record to know about the subjective satisfaction of the Bench, that heard the matter. The question that arises for our consideration is whether any error in judgment occasioned due to hearing as contended by the learned AR and 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. 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 M.A.No. 118/Hyd/2022 Page 4 of 5 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 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 08/04/2022 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 08/04/2022 in ITA No. 2236/Hyd/2017 on merits, the Tribunal has become functus officio and M.A.No. 118/Hyd/2022 Page 5 of 5 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 Copy forwarded to: 1. M/s. Vedkiran Infra Projects Private Limited, Flat No. C-901, H.No. 10-3-163/1, 901, C-Block, Amsri Central Court, Old Lancer Road, Himmat Nagar, Secunderabad. 2. Asst. Commissioner of Income Tax, Central Circle-2(3), Hyderabad. 3. Pr.CIT(Central)-Hyderabad. 4. DR, ITAT, Hyderabad. 5. GUARD FILE. TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD