ASSTT. COMMISSIONER OF INCOME TAX, DELHI V. LOGIX HEIGHTS PRIVATE LIMITED, DELHI

MA 243/DEL/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1533 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2018-2019
• Appeal Filed On: 23-08-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MANISH TIWARI; MONALISS MAITEY
• Keywords: Rectification of order
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘G’: NEW DELHI BEFORE, SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI VIMAL KUMAR, JUDICIAL MEMBER MA No.243/Del/2022 Arising out of ITA No.259/Del/2022 (ASSESSMENT YEAR 2018-19) Asst. CIT Delhi Vs. Logix Heights Private Limited C/o Prakash K. Prakash B-1, Sagar Apartments 6 Tilak Marg New Delh-110001 PAN-AABCL 9853A (Appellant) (Respondent) Assessee by Shri Ruchesh Sinha, Adv. & Ms. Monaliss Maitey, Adv. Respondent by Shri Manish Tiwari, Sr. DR Date of Hearing 07/06/2024 Date of Pronouncement 21/06/2024 ORDER PER S.RIFAUR RAHMAN, AM: 1. This present Miscellaneous Application is filed by the Revenue with the prayer to recall the order passed by the Bench in the case of Logix Heights Pvt. Ltd. for Assessment Year 2018-19 in ITA No.259/Del/2022 dated 21/03/2022. 2 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited 2. At the time of hearing, the Ld. DR submitted that the Hon’ble ITAT has passed the order on 21/03/2022 in assessee’s own case has allowed the appeal and AO was directed to delete the disallowance in the hands of the assessee on the basis of following judicial pronouncement of Hon’ble High Courts. (i) Sagun Foundry (P) Ltd. vs. CIT, 145 DTR 265 (All) (ii) CIT vs. AIMIL Limited (2010) 188 Taxman 265 (Del.) (iii) Pr. CIT vs. Pro Incteractive Service (India) Pvt. Ltd. 3. It was submitted that the decision of Hon’ble Delhi High Court in the case of CIT vs. Bharat Hotels Limited 410 ITR 417, the Hon’ble Bench has not considered the above said latest decision on the identical issue before disposing of the above said appeal. 4. Further, he submitted that the decision of Hon’ble Delhi High Court in the case of CIT vs. Bharat Hotels Limited (supra) is the latest ruling not considered by the Hon’ble Bench. Accordingly, it was prayed that the above said order may be recalled and adjudicated as per the binding ratios of Bharat Hotels Limited (supra). 3 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited 5. On the other hand, the Ld. AR submitted that the Hon’ble ITAT has considered the decisions which well the law of land at the time of passing the impugned order. He also submitted the Mumbai Bench decision in the case of M.A No.167/Mum/2023 in the case of ANI Integrated Services Ltd. dated 29/05/2024 wherein similar issue was considered by them and similarly by following the above decision in “MA” and also Bharat Hotels Limited decisions is not applicable in the case of the assessee. 6. Considered the rival submissions and material placed on record, we observed that the issue of PF and ESI relating to employees contribution had conflicting decisions taken by the various Courts at different point of time, when the Co-ordinate Bench decided the issue in the impugned order it has relied on the several decisions including Hon’ble Delhi High Court. For the sake of clarity, the same was reproduced by the Assessing Officer while raising the MA before us. While referring the above decisions, we observed that the AO has relied on the decision of Bharat Hotel Limited (supra) which is dated 6 th September, 2018 whereas the Co-ordinate Bench has decided the issue on the basis of Pr. CIT vs. 4 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited Pro Interactive Service (India) Pvt. Ltd. dated 10 th September, 2018 which is also passed by the Hon’ble Delhi High Court, therefore, the decision relied by the Assessing Officer is not the latest decision in this regard. Therefore, we do not see any reason to entertain present MA filed by the Revenue. 7. The issue of recalling the order based on the decision of Hon’ble Supreme Court or by larger Bench on a question of law which has been reversed or modified, can that be a ground for the review of earlier concluded decisions, the Mumbai Bench of ITAT has considered the similar issue and decided the issue elaborately and for the sake of repetition, we are reproducing the same. “20. We are aware that many of the Co-ordinate Benches have recalled the order of the Tribunal on this issue on the principle of the Hon’ble Supreme Court in the cased of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. reported in (2008) 305 ITR 227. In the aforesaid case the issue was that the Tribunal has passed an order on 27/10/2000 upholding the decision of CIT that assessee was not entitled for exemption u/s.11. Thereafter, the Miscellaneous Application was filed u/s. 254(2) to rectify the error committed by the Tribunal in the decision rendered by any appeal as it has not followed the judgment of the Hon'ble Jurisdictional High Court in the case of Hiralal Bhagwati vs. CIT reported in [2000] 246 ITR 188; Suhrid Geigy Ltd VS. Commissioner of Surtax reported in (1999) 237 ITR 834 which was already available on the date of the order. Thus, non- consideration of binding decision of the Jurisdictional High Court which was not followed by the Tribunal, rather it was not brought to the notice of the Tribunal therefore, Miscellaneous Application was filed and Tribunal had then recalled the order. Against this recalling of the order, Revenue had filed the writ petition which was dismissed by the Hon'ble High Court. Thus, before the Hon'ble Supreme Court one of the question was, whether 5 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited the ITAT was right in exercising the powers under sub- section (2) of Section 254 on the ground that there was a mistake apparent from record committed by the Tribunal while deciding the appeal and whether it could have recalled the earlier order of the Tribunal on that ground. Thus, the core issue was, whether non-consideration of a decision of the Jurisdictional High Court or of the Hon'ble Supreme Court which was already existing at that time when the judgment was rendered by the Tribunal can be stated to be mistake apparent from the record. The Hon'ble Supreme Court upheld that the Tribunal was right in holding that it was a mistake which can be said to be mistake apparent from the record which could be rectified u/s.254(2). There was no such principle which has been laid down that if after passing of the order of the Tribunal which has attained finality between the parties and in subsequent judgment is rendered by the superior Court, the same should also be recalled within the scope of Section 254(2). Though the Hon'ble Supreme Court had referred to a decision of Gujarat High Court in the case of Suhrid Geigy Ltd vs. Commissioner of Surtax reported in (1999) 237 ITR 834 that if the point is covered by the decision of the Hon'ble Jurisdictional High Court rendered prior or even subsequent to the order of rectification, it could be a mistake apparent from the record u/s. 254(2) and could be corrected by the Tribunal. However, the Hon'ble Supreme Court has referred this judgment and only held that if a judgment is being rendered by any High Court or Supreme Court that means the law was always being the same and if a subsequent decision alters the earlier one, the later decision does not make a new law. This observation of the Court does not lead to any inference to draw that any rectification order u/s. 254(2) can be based on subsequent judgment which comes later on. On the contrary, all the aforesaid judgments of Hon'ble Supreme Court which we have quoted above extenso have clearly held that there would be no review or recall of the order based on the subsequent judgment. Finally, the Hon'ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd. on the fact of the case has concluded as under:- "In the present case, according to the assessee, the Tribunal decided the 47 matter on October 27, 2000. Hiralal Bhagwati was decided a few months prior to that decision, but it was not brought to the attention of the Tribunal In our opinion, in the circumstances, the Tribunal has not committed any error of law or of junsdiction in exercising power under sub-section (2) of section 254 of the Act and in rectifying the "mistake apparent from the record Since no error was committed by the Tribunal in rectifying the mistake, the High Court was not wrong in confirming the said order Both the orders, therefore, in our opinion, are strictly in consonance with law and no interference is called for." 6 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited 21. The sequitor of the aforesaid decision of the Hon'ble Supreme Court is that, if already existing judgment of Jurisdictional High Court is not brought to the notice or attention of the Tribunal, then the Tribunal can recall the order while exercising the powers u/s.254(2). 22. Even otherwise also once in the latest decision in the case of CIT vs. Reliance Telecom Ltd. (supra) the Hon'ble Supreme Court have clearly held that the powers u/s. 254(2) of the Income Tax are akin to Order XLVII Rule 1 CPC, then it cannot be held that scope of power u/s.254(2) is beyond and much larger than scope of review as given in the Order XLVII Rule 1 of CPC. In fact, the scope of Section 254(2) is much limited and the scope of review is much wider. Accordingly, in view of the law laid down by the Hon'ble Constitutional Bench of the Hon'ble Supreme Court and several other judgments of Hon'ble Supreme Court cited supra, we hold that order of the Tribunal cannot be recalled based on the subsequent judgment of the Hon'ble Supreme Court when the order of the Tribunal had attained finality between the parties. Consequently, the Miscellaneous Application filed by the department is dismissed.” 8. From the above decision, it is held that scope of Section 254(2) is much limited and scope of review is much wider. Therefore, respectfully following the above decision and the order passed by ITAT had already reached finality between the parties. Accordingly, MA filed by the Revenue is dismissed. 9. In the result, the MA filed by the Revenue is dismissed. Order pronounced on 21 st June, 2024. Sd/- Sd/-- (VIMAL KUMAR) (S.RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 21/06/2024 Pk/sps 7 MA No.243/Del/2022 ACIT vs. Logix Heights Private Limited Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI