M/s. Nama Hotels, Hyderabad V. ITO,Ward -16(2), Hyderabad

MA 125/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0851 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 14-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MAYA MAHESWARI
• Assessee Lawyers: D V ANJANEYULU
• Keywords: Rectification of order; Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NO.125/HYD/2013 (IN ITA NO. 1761/ HYD/201 2) ASSESSMENT YEAR 2009 - 10 M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. ( PAN - AACCN 6702 B ) V/S. INCOME - TAX OFFICER, WARD 16(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI D.V.ANJANEYULU, RESPONDENT BY : SMT. MAYA MAHESWARI, DR DATE OF HEARING 12.07.2013 DATE OF PRONOUNCEMENT 08.08.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME - TAX ACT, 1961, THE APPLICANT - ASSESSEE SEEKS RECTIFICATION/RECALL OF THE O R DER OF THIS TRIBUNAL DATED 15.3.2013 IN ITA NO.1761/HYD/2012 FOR TH E ASSESSMENT YEAR 2009 - 10 ON THE GROUND THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. 2. LEARNED COUNSEL FOR THE ASSESSEE, REITERATING THE CONTENTION S U R GED IN THE PRESENT APPLICATION SUBMITTED THAT TH IS TRIBUNAL DISMISSED THE APPEAL OF THE ASSESSEE ON THE SOLE GROUND THAT THE APPEAL REL A TING TO EXEMP T ION OF DIVIDEND INCOME AND GIVING SET OFF TO BROUGHT FO R W A RD LOSSES DO NO T ARISE OUT O F THE O R DER OF THE CIT(A) AND AS SUCH THE SAME CANNOT BE G ONE INTO. I T IS THE PLEA OF THE LEARNED COUNSEL THAT THE APPEAL FIL E D BEFORE THE CIT(A) AGAINST TH E MISC. APPLN . NO.125/HYD/2013 (IN ITA NO. 1761 /HYD/201 2) M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. 2 REJECTION OF S.154 PETITION BY THE ASSESSING OFFICER, CON SIS TING OF 4 G R OUNDS AND THE CIT(A) HAS CONSI DE RED ONLY O NE GROUND, VIZ. GROUND NO.3, BY SAYING THAT THERE IS ONLY AN ISSUE OF MISMATCH OF TDS AND ACCORDINGLY DIRECTED TO VE R IFY TH E CLAIM O F THE APPELLANT AND PASS A RECTIFICATION O RDER GIVING CREDIT FOR TDS IF IT IS NO T CO R RECT AND NOT CON S I D ERED THE OTHER TWO G R OUNDS, I.E. TOTAL INCOME AND TAXES. B E F O RE THE T RIBUNAL, IT IS PLEADED, THE ISSUE REL A TING TO THE E X EMP T ED INCOME AND BROUGHT FORWARD LOSSES ETC WERE SPECIFICALLY URGED IN GROUND NO.2 AND TH ERE FORE, IT IS ARISEN OUT O F THE O R DER OF THE CIT(A). IN THE WRITTEN SUBMISSION FILED IN TH E COU R SE OF APPELLATE HEARING BEFORE THE TRIBUNAL, ELABORATE CONTENTIONS WERE URGED AND DECISIONS WERE CITED, BUT THE SAME, THOUGH OF VITA L IMPORTANCE, WERE NOT CONSIDERED AT THE TIME OF DISPOSAL. THIS NON - CONSI D ERATION, ACCO RDING TO HIM, IS A MISTAKE APPARENT FROM RECORD. R E LIANCE IN THIS BEHALF IS PLACED ON THE DECISION OF THE JAIPUR BENCH DECISION OF THE T RIBUNAL IN THE CASE OF GEHNA V/S. ITO (137 TTJ (JP)(UO)17). 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, STRONGLY SUPPORTING THE ORDER OF THE TRIBUNAL, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD, AND THE PRESENT PETITION IS DEVOID OF MERIT. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS IN THE LIGHT OF THE ORDER OF THE TRIBUNAL DATE 15.3.2013 AND THE WRITTEN AND THE AVERMENTS MADE IN THE PRESENT PETITION. ON CAREFUL CONSIDERATION OF THE MATTER, WE FIND THAT THE TRIBUNAL HAS PASSED A WELL REASONED SPEA KING ORDER, UPHOLDING THE ORDER OF THE CIT(A) IMPUGNED BEFORE IT, WHEREBY THE CIT(A) HAS SET ASSIDE THE MATTER TO THE FIL E O F THE ASSESSING OFFICER FOR VERIFYING AND GIVIN G CREDIT FOR C ORRECT AMOUN T OF MISC. APPLN . NO.125/HYD/2013 (IN ITA NO. 1761 /HYD/201 2) M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. 3 TDS AND PASSING APPROPRIATE ORDERS UN D ER S.154 OF TH E AC T. THE ORDER IMPUGNED BEFORE THE TRIBUNAL , BEING THE ORDER OF THE CIT(A) PASSED IN THE CONTE X T OF THE ORDER OF THE ASSESSING OFFICER REFUSING TO PASS RECTIFICATION ORDER UNDER S.154, THE SCOPE OF ADJUDICATION IS CONFINED TO EXISTENCE OR OTHERWISE OF A MISTAKE APPARENT FROM RECORD IN THE ORDER OF ASSESSMENT GIVING RISE TO ASSESSEES PETITION FOR RECTIFICATION UNDER S.154 . I N THE ABSENCE OF EVEN A WHISPER ABOUT EXEMPTION OF DIVIDEND INCOME OR BROUGHT FORWARD LOSSES IN THE ORDER OF THE CIT(A) , THE TRIB UNAL HELD THE GROUNDS RAISED IN RELATION THERETO AS NOT ARISING OUT OF THE ORDER OF THE CIT(A). IT IS A CONSCIOUS DECISION OF THE TRIBUNAL, ON APPRECIATION OF TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, AND THERE IS NO MISTAKE WHATSOEVER IN THE ORDER OF THE TRIBUNAL. EVEN OTHERWISE, THE SO CALLED MISTAKE BEING ATTRIBUTED BY THE ASSESSEE IS NOT AN IMMEDIATE FALL OUT ON ACCOUNT OF THE ORDER OF THE TRIBUNAL , AND IT FALLS OUTSIDE THE SPECTRUM OF THE SUBJECT MATTER OF PROCEEDINGS UNDER S.154 OF THE ACT , AND AS SUCH IT IS BEYOND THE SCOPE OF RECTIFICATION CONTEMPLATED UNDER S.254(2) OF THE ACT. 5. IN ARRIVING AT THE ABOVE CONCLUSION, W E ARE SUPPORTED IN THIS BEHALF BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF IN THE CASE OF CIT V/S . ITAT & ANR. 206 ITR 126 THE ANDHRA PRADESH HIGH COURT WHEREIN IT HAS BEEN HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES T HE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE MISC. APPLN . NO.125/HYD/2013 (IN ITA NO. 1761 /HYD/201 2) M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. 4 SPECIFICALLY CONFERRED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARE NT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG - DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AND RESEA RCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF - EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. 6. SIMILARLY, CIT V/S. VED PRAKASH (209 ITR 448) - AP, WHEREIN IT WAS HELD AS FOLLOWS - 'IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD, UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF - EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONSISTING OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FRESH THINKING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF THE ORDER UNDER THE GUISE OF RECTIFICAT ION. THE ONLY FACT THAT HAD THE SECOND SET OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE ASSESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE OF RECTIFICATION OF A MISTAKE. 7. IN VIEW OF THE FOREGOIN G DISCUSSION, WE FIND NO MISTAKE APPARENT FROM RECORD, WITHIN THE MEANING OF S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE MISTAKES APPARENT FROM RECORD. 8. IN THE CIRCUMSTANCES, THE PRESENT APPLICATION OF THE ASSES SEE IS DEVOID OF MERIT AND IT IS LIABLE TO BE REJECTED AS SUCH. WE DO SO ACCORDINGLY. 9 . IN THE RESULT, MISCELLANEOUS APP LICATION OF THE ASSESSEE IS REJECTED . MISC. APPLN . NO.125/HYD/2013 (IN ITA NO. 1761 /HYD/201 2) M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. 5 ORDER PRONOUNCED IN THE COURT ON 08.08.2013 SD/ - SD/ - (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 08 TH AUGUST, 2013 COPY FORWARDED TO: 1. M/S. NAMA HOTELS PVT. LTD., C/O C/O. M/S. ANJANEYULU & CO., CHARTERED ACCOUNTANTS, 30, BHAGYALAKSHMI NAGAR, GANDHI NAGAR HYDERABAD 500 080 2. INCOME TAX OFFICER, WARD 16(2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) - V, HYDERABAD. 4. COMMISSIONER OF INCOME - TAX IV HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S. MISC. APPLN . NO.125/HYD/2013 (IN ITA NO. 1761 /HYD/201 2) M/S. NAMA HOTELS PRIVATE LTD., HYDERABAD. 6