ACIT, Circle 6(1), Hyderabad V. Maganti Constructions, Hyderabad

MA 202/HYD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6622 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-04-2011
• Assessment Year: misc
• Appeal Filed On: 29-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K J RAO
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Rectification of order; Reasonable cause
• Section: 194C; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT & SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER M.A. NO. 202/HYD/2010 (ARISING OUT OF I.T.A. NO. 733/HYD/09) ASSESSMENT YEAR 2004-05 THE ASST. CIT, CIRCLE-6(7) HYDERABAD VS. M/S. MAGANTI C ONSTRUCTIONS HYDERABAD PAN: AAEFM1542M APPL IC ANT RESPONDENT APPELLANT BY: MR. K.J. RAO RESPONDENT BY: MR. V. RAGHAVENDRA RAO O R D E R PER CHANDRA POOJARI, AM: THIS MISCELLANEOUS APPLICATION BY THE DEPARTMENT SEEKS RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 9 TH APRIL, 2010 IN I.T.A. NO. 733/HYD/09. 2. THE CONTENTION OF THE LEARNED DR IS THAT THERE IS A MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL (CITED SUPRA) TO THE EFFECT THAT THE ASSESSEE CLEARLY OMITTED TO DECLARE THE CONTRACT RECEIPTS OF RS. 1.54 CRORES WHICH IS ESTABLISH ED FROM THE RECORD/TDS CERTIFICATES SHOWING THE DATE-WISE RECEIPTS U/S. 194C OF THE INCOME-TAX ACT, 1961. THE TRIBUNAL COMMITTED A MISTAKE BY NOT CONSIDERING THE CONTRACT RECEIPTS OF RS. 1.54 CRORES WHICH WAS NOT OFFE RED TO TAX. ACCORDINGLY, THE LEARNED DR SUBMITTED TO RECALL THE ORDER AND TO ADJUDICATE THE ISSUE AFRESH. 3. THE LEARNED AR OF THE ASSESSEE STRONGLY OPPOSED THE ARGUMENT OF THE LEARNED DR AND SUBMITTED THAT THERE IS M.A. NO. 202/HYD/2010 M/S. MAGANTI CONSTRUCTIONS ==================== 2 NO MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECALL OF THE ORDER OF THE TRIBUNAL (CITED SUPRA). 4. WE HAVE HEARD BOTH THE PARTIES AND ALSO PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL CONSIDERED THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND HELD THAT THE ISSUE DEALT WITH BY THE CIT(A) CANNOT BE SUBJECT MATTER OF INVOKING THE PROVISIONS OF SECTION 263 AND GIVING A CLEAR-CUT FINDING ON THE ISSUE IN DISPUTE. NOW CONSIDERATION OF THE ARGUMENTS OF THE DR AMOUNTS TO REVIEW OF THE EARLIER ORDER OF THE TRIBUNAL. THE SCO PE AND AMBIT OF PROVISIONS OF SECTION 254(2) ARE VERY LIMITED . IT IS RESTRICTED TO RECTIFICATION OF MISTAKE APPARENT FROM RECO RD BUT TO REVIEW OR RECALL THE ORDER OF THE TRIBUNAL IS N OT PERMISSIBLE U/S. 254(2), IF NECESSITATED RE-HEARING A ND RE- ADJUDICATION OF ENTIRE SUBJECT MATTER OF APPEAL AND DISPUTE AFTER BEING PUT FOR RE-HEARING NO LONGER REMA INS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PROVIDED UNDER RULES 24 AND 25 O F THE ITAT RULES, 1963; THAT TOO ONLY IN CASES WHERE ASSESS EE/ REVENUE SHOWS REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THAT APPEAL WAS TAKEN UP AND DECIDED EX- PARTE. BUT THE TRIBUNAL CANNOT GO INTO THE MERITS OF THE APPEAL ALL OVER AGAIN. IT IS NOT WITHIN THE SCOPE OF APPLICATION FOR RECTIFICATION TO RE-ARGUE THE CASE AND A VAIL OF A FURTHER CHANCE WHERE THERE IS NO MISTAKE APPARENT ON THE FACE OF THE RECORD. IN THE PRESENT CASE WE FIND NO MISTAKE WHICH REQUIRES RECTIFICATION OF THE EARLIER ORD ER OF THE TRIBUNAL AND THE ARGUMENT OF THE DEPARTMENT IS NOTHING BUT SEEKING A CHANCE FOR RE-ARGUING THE M.A. NO. 202/HYD/2010 M/S. MAGANTI CONSTRUCTIONS ==================== 3 DEPARTMENTAL CASE. IN OUR OPINION THE DEPARTMENT MADE NO CASE FOR RECALLING OF THE ORDER. 5. IN THE RESULT, THE MA FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH JUNE, 2011. SD/- (G.C. GUPTA) VICE PRESIDENT SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 10 TH JUNE, 2011 TPRAO COPY FORWARDED TO: 1. THE ASST. CIT, CIRCLE-6(1), 7 TH FLOOR, D BLOCK, IT TOWERS, MASAB TANK, HYDERABAD. 2. M/S. MAGANTI CONSTRUCTIONS, D. NO. 8-2-623/5/ 1/1, 14, AVENUE-4, BANJARA HILLS, HYDERABAD. 3. THE CIT(A)-VI, HYDERABAD. 4 THE CIT-VI, HYDERABAD 5. THE DR A BENCH, ITAT, HYDERABAD `