Asst. Commissioner of Income Tax, Circle-1, Anantapur V. Saveera Hospital Private Limited , Anantapur

MA 143/Hyd/2022

AI Insights

The case involves M/s. Saveera Hospital Private Limited, which filed two Miscellaneous Applications (MAs) against an order of the Income Tax Appellate Tribunal, Hyderabad. The MAs sought to recall a previous order that had not favored the assessee in ITA Nos. 295 & 296/Hyd/2019. The assessee contended that the Tribunal had ignored substantial evidence and relevant legal precedents in their original decision. The Department of Revenue opposed the recall, asserting that all materials and arguments had been adequately considered. The Tribunal, referencing decisions from the Hon'ble Apex Court, concluded that the MAs did not meet the criteria for recalling the earlier order, emphasizing the finality and stability of judicial pronouncements.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 133314 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-12-2022
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 29-12-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 18-10-2022
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC), Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal No 5041 of 2021, IA No. 76416/2021 (M.A. No.1166 of 2021)
• Laws Referred To: Income Tax Act
• Court: TRIBUNAL
• Keywords: Search and seizure; Set aside
• Section: 254(2)

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. Nos. 142 & 143/Hyd/2022 (Arising out of ITA Nos. 295 & 296/Hyd/2019 C.O. Nos. 12 & 13/Hyd/2019) (विर्धारण िर्ा / Assessment Years: 2014-15 & 2015-16) M/s.Saveera Hospital Private Limited, Anantapur [PAN No. AARCS6341L] Vs. Asst.Commissioner of Income Tax, Circle-1, Anantapur (आिेदक / Applicant) (प्रत्‍यर्थी / Respondent) विर्धाररती द्वधरध/Assessee by: Shri D.V.Anjaneyulu, AR रधजस्‍ि द्वधरध/Revenue by: Shri Kumar Aditya, DR सुििधई की तधरीख/Date of hearing: 30/12/2022 घोर्णध की तधरीख/Pronouncement on: 30/12/2022 आदेश / ORDER PER K. NARASIMHA CHARY, JM: These two Miscellaneous Applications are filed by the assessee to recall the common order dated 18/07/2022 passed in ITA Nos. 295 & 296/Hyd/2019 along with CO Nos. 12 & 13/Hyd/2019 on the ground that the Tribunal ignored while passing such order, the voluminous record that was submitted by the assessee before the authorities below and also the Tribunal ignored the relief provided by the learned Assessing Officer in the MA Nos. 142 & 143/Hyd/2022 Page 2 of 7 remand report. It is further stated that the Tribunal referred to two decisions, which are neither relied by the assessee nor by the Revenue and such decisions are not relevant to the facts of the case. 2. Learned AR made submissions on the same lines as the contentions of the MA and submitted that the assessee furnished the notarised affidavits, confirmation letters, land holding certificates from Revenue department etc., from all the investors and the authenticity of such record is not at all doubted by the authorities in respect of the identity or creditworthiness of the share applicants or the genuineness of the transaction and, therefore, the Tribunal fell in error in reversing the order of the learned CIT(A). He, therefore, submitted that non-consideration of the judgments of the Hon'ble Apex Court and the jurisdictional High Court as well as the CBDT circulars constitute an error apparent from the record and on this basis, prays to recall the impugned order. 3. Per contra, learned DR submitted that all the material referred to by the learned AR was considered by the learned Assessing Officer in his remand reports and all such facts are considered in detail by the Bench in an elaborate manner. He further submitted that it is not correct to say that Revenue did not place reliance on the decision of the Hon'ble Apex Court referred to by the Tribunal or to say that such decisions have no application to the facts of the case. He submitted that the facts as elaborately dealt with by the learned Assessing Officer in the assessment orders and remand reports are dealt with by the Tribunal also and the Tribunal has given a specific finding that though in the second remand report, the learned Assessing Officer did not dispute the identity of parties, their creditworthiness and the genuineness of the transaction was not admitted nor any relief was proposed by the learned Assessing Officer. He relied upon the decision of the Hon’ble Apex Court in the cases of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). MA Nos. 142 & 143/Hyd/2022 Page 3 of 7 4. In reply, learned AR submitted that the decisions relied upon by the learned DR are clearly distinguishable and cannot be made applicable to the facts of the case. According to him, when once the mistake apparent on the face of record is established, the order has to be recalled. 5. We have gone through the record in the light of the submissions made on either side. Insofar as the factual and legal errors pointed out by the learned AR are concerned, the fact remains that the material produced by the assessee during the proceedings was thoroughly examined by the learned Assessing Officer and his report on both the occasions speaks volumes as to the attendant circumstances of the case. Learned Assessing Officer did not doubt the identity of the parties but seriously disputed, as noticed by the learned CIT(A) in his order vide paragraph No. 8.2 that the sufficiency of the sources of the shareholders. This itself shows that the learned Assessing Officer did not propose any relief to the assessee as is claimed by the assessee. 6. Be that as it may, the impugned order shows that the comments of the learned Assessing Officer on the material produced by the assessee was taken note in an elaborate manner vide paragraph Nos. 11 to 51 and thereafter, the observations of the learned CIT(A) were also taken note of. Having considered these aspects it is the specific observation of the Tribunal that having regard to the importance of the facts in this matter and for the sake of completeness, the facts emanating from the orders of the authorities below were to be detailed and so also the contentions of the remand reports. It is recorded that a comprehensive understanding on the remand reports clearly establish that through the second remand report, the learned Assessing Officer did not dispute the identity of parties but their creditworthiness and genuineness of the transaction was still under fire, and the learned Assessing Officer did not mince many words to say that the creditworthiness of the share applicants and the genuineness of the transactions were far from being established. MA Nos. 142 & 143/Hyd/2022 Page 4 of 7 7. The impugned order is elaborate in discussion in the light of the comments of the authorities below on the material produced by the assessee and on a careful consideration of the contentions of MA, and the order impugned, we are of the considered opinion that it is far from truth to allege that such an order suffers any mistake, either of law or of facts, apparent on record. 8. On the face of this factual findings, we find it difficult to accept the submissions on behalf of the assessee that any particular submission made on behalf of the assessee was not considered. In our opinion, the entire issue is decided in a holistic way without any specific reference to any of the grounds and, therefore, it is difficult to say that a particular ground is not adjudicated specifically. We are afraid that to seek recall of the order on this ground, may amount to seek review/revise the order that has decided the issue comprehensively. 9. Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) 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 MA Nos. 142 & 143/Hyd/2022 Page 5 of 7 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. 10. In Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal No 5041 of 2021 by order dated 04/10/2021 Hon'ble Apex Court observed that,- “12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].” 11. Further Hon'ble Apex Court in IA No. 76416/2021 (M.A. No.1166 of 2021) by order dated 17/8/2022 deprecated the growing tendency of indirectly seeking review of the orders of the Court by filing applications either seeking modification or clarification of the orders. MA Nos. 142 & 143/Hyd/2022 Page 6 of 7 12. In view of this factual and legal position, we do not see any reason to recall the common order dated 18/07/2022 in ITA Nos. 295 & 296/Hyd/2019 and CO Nos. 12 & 13/Hyd/2019. The Miscellaneous Applications are accordingly dismissed. Order pronounced in the open court on this the 30 th day of December, 2022. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 30/12/2022 TNMM MA Nos. 142 & 143/Hyd/2022 Page 7 of 7 Copy forwarded to: 1. Asst. Commissioner of Income Tax, Circle-1, Anantapur. 2. M/s.Saveera Hospital Private Limited, # 1-1348, Sai Nagar Colony, NH-44, Opp: Sakshi Office, Anantapur. 3. CIT(A)-Kurnool. 4. Pr.CIT-Kurnool. 5. DR, ITAT, Hyderabad. 6. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD