Sri Venkatesh Developers , Hyderabad V. Asst. Commissioner of Income Tax, Circle-4(1), Hyderabad

MA 132/Hyd/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9579 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 20-10-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ A ‘ Bench, Hyderabad Before Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R Per Laliet Kumar, J.M. The present Miscellaneous Application is filed by the petitioner / assessee aggrieved by the order passed by the co- ordinate Bench of the Tribunal dt.30.06.2022 in ITA No.1687/Hyd/2019 for A.Y. 2009-10 seeking to recall or modify the said order u/s 254(2) of the Act. MA No.132/Hyd/2022 In ITA 1687/Hyd/2019 Assessment Year: 2019-20 Sri Venkatesh Developers, Hyderabad. PAN : ABCFS6497A Vs. The Assistant Commissioner of Income Tax, Circle – 4(1), Hyderabad. (Petitioner/ Appellant) (Respondent) Assessee by: Sri Siddharth Toshnival Revenue by : Ms. Reema Yadav Date of hearing: 21.10.2022 Date of pronouncement: 28.10.2022 M.A.No.132/Hyd/2022 2 2. Before us, ld.AR for the assessee had made certain submissions vide Paras 6 to 8 of his petition and further submitted that the order passed by the Tribunal is required to be recalled. 3. Per contra, the ld.DR for the Revenue had submitted that in the garb of rectification application, the assessee wishes that the Tribunal should revisit the order passed by it and decide the issue in favour of the assessee which amounts to review of its own order by the Tribunal, which is not permissible in law. Ld.DR had submitted that rectification of order either on account of fact or law is not permissible in view of the decision of Hon'ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd (2021) 133 taxmann.com 41 (SC). 4. We have heard both the parties and perused the material available on record. The tone and tenor of the submissions made by the assessee clearly shows that it wishes that the Tribunal may review its own order passed on 30.06.2022. In this connection, we hold that after the authoritative pronouncement by the Hon'ble Supreme Court in the case of Reliance Telecom (supra), the Tribunal has limited power to recall the order as circumscribed by the Hon’ble Supreme Court. We may also draw support from the recent decision of the co-ordinate Bench of the Tribunal in the case of Syed Sikander Ali, vide M.A. No.37/Hyd/2022 order dt.29.07.2022, wherein the Tribunal has held as under:- M.A.No.132/Hyd/2022 3 “4. We have gone through the record in the light of the submissions made on either side. The question now that arises for our consideration is whether any error in judgment which alleged 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. 5. 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). 6. 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 Hon'ble Supreme Court, in the case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order.” M.A.No.132/Hyd/2022 4 5. In the light of the above, we are of the opinion that the present Miscellaneous Application filed by the assessee is not maintainable. Hence, the same is dismissed. 6. In the result, the Miscellaneous Application filed by the petitioner / assessee is dismissed. Order pronounced in the open court on 28 th October, 2022. d/- Sd/- Sd/- Sd/- (RAMA KANTA PANDA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 28 th October, 2022. TYNM/sps Copy to: S.No Addresses 1 Sri Venkatesh Developers, C/o.Siddharth Toshnival, Advocate, 3-5-144/5, Eden Garden, Hyderabad. 2 The Assistant Commissioner of Income Tax, Circle 4(1), Hyderabad 3 CIT(Appeals) – 8, Hyderabad. 4 Pr.CIT-1, Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File