Sai Regency Power Corporation Private Limited, Hyderabad V. DCIT, Circle-3(1), Hyderabad

MA 18/Hyd/2023

AI Insights

The case involves Sai Regency Power Corporation Private Limited, which filed a Miscellaneous Application requesting the Income Tax Appellate Tribunal (ITAT) to recall its earlier order dated 22/06/2022 concerning the assessment year 2012-13. The application was based on two grounds: the need to rectify a mistake apparent from the record regarding 'netting of interest' and the claim that the assessee was under a moratorium as per section 14 of the Insolvency and Bankruptcy Code (IBC), 2016, which commenced on 27/03/2019. The Tribunal dismissed the application due to it being filed beyond the permissible time limit and also on the grounds that the issues raised were not maintainable under the legal provisions cited.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133156 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 18-05-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 27-03-2023
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act, Insolvency and Bankruptcy Code, 2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S. VENUGOPAL
• Keywords: 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, ACCOUNTANT MEMBER & SHRI LALIET KUMAR, JUDICIAL MEMBER वि.आिे.सं / M.A. No. 18/Hyd/2023 (Arising out of ITA No. 1221/Hyd/2019) (विर्धारण िर्ा / Assessment Year: 2012-13) Sai Regency Power Corporation Private Limited, Hyderabad [PAN : AACCR6134R] Vs Dy. Commissioner of Income Tax, Circle-3(1), Hyderabad (आिेदक / Applicant) (प्रत्‍यर्थी / Respondent) विर्धाररती द्वधरध / Assessee by: Shri S. Venugopal, AR रधजस्‍ि द्वधरध / Revenue by: Shri Kumar Aditya, DR सुििधई की तधरीख/Date of hearing: 19/05/2023 घोर्णध की तधरीख/Pronouncement on: 22/05/2023 आदेश / ORDER PER LALIET KUMAR, JM: By way of this Miscellaneous Application, M/s. Sai Regency Power Corporation Private Limited, (“the assessee”) requested the Tribunal to recall the order dated 22/06/2022 in ITA No. 1221/Hyd/2019 for the assessment year 2012-13, mainly on two issues. The first one which the assessee earnestly prays the Hon'ble Tribunal is to rectify the mistake apparent from record and adjudicate the issue of ‘netting of interest’ and the second one is that the assessee is covered by M.A.No. 18/Hyd/2023 Page 2 of 6 moratorium u/s. 14 of IBC, 2016, hence no authority such as the Tribunal can either initiate a proceeding or continue with a pending proceeding once period of moratorium commences i.e., w.e.f.27/03/2019. Since the Hon'ble Tribunal passed an order on 22/06/2022 that is after the date of commencement of moratorium on 27/03/2019, assessee requested to recall its order and cancel the same. 2. Learned DR objected the contentions raised by learned AR, who seeks to recall the order of Tribunal. It was submitted that the issue pending before the NCLT was never raised before the Tribunal at the time of arguments of the appeal. Further, learned DR submitted that the Miscellaneous Application u/s. 254(2) of the Act is barred by limitation period. 3. We have heard the rival submissions and perused the record. In the present case, the order was passed by the Tribunal on 22/06/2022 and the said order was served on the assessee on 05/07/2022 and thereafter present Miscellaneous Application was filed by the assessee on 28/03/2023. As per the report of Registry, there is a delay of 87 days in filing the present Miscellaneous Application u/s. 254(2) of the Act by the assessee before the Tribunal. As per section 254(2) of the Act, statutory period provided for filing the Miscellaneous Application is six months. Since the present Miscellaneous Application has been filed after a delay of 87 days i.e., beyond the limitation. Therefore, the Miscellaneous Application is required to be dismissed. M.A.No. 18/Hyd/2023 Page 3 of 6 Admittedly the Tribunal does not have power to extend the limitation as provided under section 254(2) of the Act. In the light of the above, Miscellaneous Application filed by assessee is dismissed. 4. Moreover, on merits also, the present Miscellaneous Application is not maintainable as per the decision of the Hon'ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 5. 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 M.A.No. 18/Hyd/2023 Page 4 of 6 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. 6. In this case, we find that the Tribunal passed detailed order. By no stretch of imagination, therefore, could we say that the order dated 22/06/2022 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 22/06/2022 in ITA No. 1221/Hyd/2019 on merits, the Tribunal has become functus officio and the prayer of the assessee to reopen the M.A.No. 18/Hyd/2023 Page 5 of 6 same is impermissible under law. Consequently, we decline to grant the prayer of the assessee. 7. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on this the 22 nd day of May, 2023. Sd/- Sd/- (RAMA KANTA PANDA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 22/05/2023 TNMM M.A.No. 18/Hyd/2023 Page 6 of 6 Copy forwarded to: 1. Sai Regency Power Corporation Private Limited, 8-2-293/82/A/431/A, Road No. 22, Jubilee Hills, Hyderabad. 2. Dy. Commissioner of Income Tax, Circle-3(1), Hyderabad. 3. Pr.CIT-3, Hyderabad. 4. DR, ITAT, Hyderabad. 5. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD