DCIT, Rourkela V. M/s. Sree Metaliks Limited, Keonjhar

MA 25/CTK/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4956 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 29-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SOVECH CHANDRA MOHANTY; RESTORING
• Assessee Lawyers: S.RAY
• Keywords: TDS; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND ARUN KHODPIA, ACCOUNTANT MEMBER Dy.CIT, Rourkela PAN/GIR No. (Appellant Revenue by Per C.M.Garg By way of this miscellaneous petition, the revenue seeks to revisit the order of the Tribunal passed on 12.6.2019 in ITA No.132/CTK/2019 on the ground that the fresh decision instead of Assessing Officer. 2. Facts of the case are that the assessee had filed appeal against the order of the Pr. CIT u/s.263 of the Act. After considering the rival submissions, the Tribunal has set aside the order of the Pr. CIT and restored the matter back to the file of the Assessing Officer to consider the IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/SHRI CHANDRA MOHAN GARG, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER M.A.No.25/CTK/2019 ( in ITA No.132/CTK/2019) Assessment Year : 2014-15 Dy.CIT, Rourkela Vs. Shree Metaliciks Ltd., Keonjhar No.AAECS 1828 F (Appellant) .. ( Respondent Assessee by : Shri S.Ray, AR Revenue by : Shri Sovech Chandra Mohanty, Addl. Date of Hearing : 10 /3/ 20 Date of Pronouncement : 21/ O R D E R g, JM By way of this miscellaneous petition, the revenue seeks to revisit the order of the Tribunal passed on 12.6.2019 in ITA No.132/CTK/2019 on the ground that the matter should have been restored to the file of Pr. CIT for fresh decision instead of Assessing Officer. Facts of the case are that the assessee had filed appeal against the order of the Pr. CIT u/s.263 of the Act. After considering the rival ns, the Tribunal has set aside the order of the Pr. CIT and restored the matter back to the file of the Assessing Officer to consider the Page1 | 4 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER .132/CTK/2019) Shree Metaliciks Ltd., Respondent) , AR Sovech Chandra Mohanty, Addl. CIT (DR) / 2022 /3/2022 By way of this miscellaneous petition, the revenue seeks to revisit the order of the Tribunal passed on 12.6.2019 in ITA No.132/CTK/2019 on the matter should have been restored to the file of Pr. CIT for Facts of the case are that the assessee had filed appeal against the order of the Pr. CIT u/s.263 of the Act. After considering the rival ns, the Tribunal has set aside the order of the Pr. CIT and restored the matter back to the file of the Assessing Officer to consider the M.A.No.25/CTK/2019 ( in ITA No.132/CTK/2019) Assessment Year : 2014-15 Page2 | 4 aspect whether the assessee has paid interest to SREI Equipments Pvt Ltd., without deducting TDS, which was required to be deducted at the time of making payment u/s.`194A of the Act. Since the Tribunal was of the opinion that the Assessing Officer has not enquired this aspect, hence, the Pr. CIT was right in exercising his power u/s.263 of the Act. 3. The only grievance in this petition is that the matter should have been restored back to the file of the Pr. CIT instead of AO. 4. Ld Sr DR reiterated the submissions raised in the miscellaneous petition. 5. Replying to above, ld A.R. submitted that once the Tribunal has passed an order, then it cannot be revisited under section 254(2) of the Act as the power does not clothe the Tribunal with the jurisdiction to review its own decision or to rewrite a fresh judgment. Ld A.R. submitted that when the Tribunal was satisfied after perusing the certified issued by Jain & Pareek, CA that the tax has been deducted and paid as mentioned in the return of income, then only, it had directed the AO to verify as to whether the assessee has deducted the tax and paid or not and, thereafter pass fresh assessment order. Hence, there is no loss to the revenue by restoring the matter back to the file of the AO. 6. Ld A.R. referred to the judgment of Hon’ble High Court of Orissa in O.J.C. No.943 of 1991 order dated 27.11.2991 in the case of CIT vs ITAT M.A.No.25/CTK/2019 ( in ITA No.132/CTK/2019) Assessment Year : 2014-15 Page3 | 4 and also the judgement in the case of CIT vs ITAT in O.J.C. No.2010 of 1992 order dated 29.7.1994, wherein, it has been categorically held that the Tribunal has power under sub-section (2) of Section 254 of the Act to rectify the mistake apparent from the record but the power does not clothe the Tribunal with the jurisdiction to review its earlier decision or to write a fresh judgment. He submitted that once the Tribunal has set aside the matter to the file of the AO to verify as to whether the TDS has been deducted and paid the same. Hence, there is no mistake in the order of the Tribunal. 7. We have heard the rival submissions and also perused the miscellaneous petition filed by the Revenue. The short question which arises for our consideration as to whether the Tribunal was justified in restoring the matter to the file of the for verification of the TDS deducted instead of the Pr. CIT arising out of order u/s.263 of the Act. In this case, the AO has not made proper enquiry regarding the payment of interest to SREI Equipments Finance Pvt Ltd., and consequent deduction of TDS on the interest amount. The Pr. CIT, in exercise his power u/s.263 of the Act, directed the AO to modify the assessment order disallowing interest payment of Rs.17,49,29,877/-. Against the order of the Pr. CIT, the assessee came in appeal before the Tribunal and produced a certificate furnishing by Jain & Parik, CA certifying the furnishing of return, payment of tax, etc by the payee, and considering the said certificate, the Tribunal has M.A.No.25/CTK/2019 ( in ITA No.132/CTK/2019) Assessment Year : 2014-15 Page4 | 4 restored the matter to the file of the AO for verification regarding the payment of TDS against the interest payment. It is upto the AO to verify the same and decide the issue afresh. No prejudice has been caused to the Revenue in this regard. If we consider the request of the revenue to restore the matter to the file of the Pr. CIT instead of AO, it would amount to review of the order of the Tribunal, which is not under the purview u/s.254(2) of the Act. Hence, we dismiss the M.A. filed by the revenue. 8. In the result, M.A. filed by the revenue is dismissed. Order pronounced on 21 /3/2022. Sd/- sd/- (Arun Khodpia) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 21 /03/2022 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Dy.CIT, Rourkela 2. The Respondent. Shree Metaliciks Ltd., Keonjhar 3. Pr.CIT-, Bhubaneswar , Sambalpur 4. DR, ITAT, Cuttack 5. Guard file. //True Copy//