M/s. R.V. Nirmaan Private Limited, Hyderabad V. Dy.CIT, Circle-3(5), Hyderabad

MA 32/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1630 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 20-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: A V RAGHURAM
• Keywords: Rule of consistency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APPLN. NO.32/HYD/2014 (IN ITA NO.850/HYD/10) : ASSESSMENT YEAR 2006 - 07 M/S. RV NIRMAN PRIVATE LIMITED HYDERABAD ( PAN - A ABCR 0774 L ) V/S. DY. COMMISSIONER OF INCOME - TAX CIRCLE 3(1), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI A.V.RAGHURAM RESPONDENT BY : SHRI SOLGY JOSE T.KOTTARAM DR DATE OF HEARING 07.3.2014 DATE OF PRONOUNCEMENT 28.3.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE ACT, ASSESSEE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 25 TH SEPTEMBER, 2013 IN ASSESSEES APPEAL, ITA NO.850/HYD/2010 FOR THE ASSESSMENT YEAR 2006 - 07, ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. REITERATING THE AVERMENTS/CONTENTI ONS URGED IN THE PRESENT APPLICATIONS, LEARNED COUNSEL FOR THE ASSESSEE, AFTER NARRATING THE FACTUAL BACKGROUND LEADING TO THE FILING OF THE PRESENT APPLICATION, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER S.80IB(10) OF THE ACT AND THE HYDERABAD UR BAN DEVELOPMENT AUTHORITY APP R OVED THE PROJECT O F THE ASSESSEE ON 26.6.2004 AND TH E R E FORE , THE PROVIS I ONS OF S.80IB(10) AS IT THEN STOOD WOULD A P PLY. IT WAS RECAPITULATED THAT IN TH E COURSE O F H EARING BEFORE THE T R I BUNAL, THE ASSESSEE, WITHOUT PREJUDICE TO VARIOUS CON T ENTION S RAISED BY THE ASSESSEE IN APPEAL SUBMITTED THAT THE ISSUE INVOLVED IN THE APPEAL IS COVERED BY THE MA NO. 32 /HYD/2014 (IN ITA NO. 850 / HYD/20 10 ) M/S. RV NI RMAN PRIVATE LIMITED, HYDERABAD 2 JUDGMENT OF MADRAS HIGH COU R T IN TH E CA S E OF CIT V/S. JAIN HOU S ING & CON S TRUC T IONS L TD. (TAX CASE (APPEAL) NO.759 OF 2010 DATED 2.11.2 012) AMONG OTHERS, AND ALSO CITED THE DECISION S OF T RIBUNAL OF PUNE BENCH IN ITO V/S. SATISH K.BORA ( ITA NO.295/PN 2012 DATED 17.5.2013) AND OF DELHI BENCH , ETC. THOUGH THE BENCH AT THE TIME OF HEARING EXPRESSE D THE VIEW THAT THE DECISION OF THE MARAS H IGH COU R T COVERED THE ISSUE INVOLVED IN TH E APPEAL IN FAVOUR O F THE ASSESSEE AND FELT THAT THERE IS NO NEED OF FURTHER HE A RING OTHER CONTENTION S AND SUBMISSIONS MADE BY T H E ASSESSEE IN THE APPEAL. HOWEVER, IN THE ORDER DATED 25.9.2013, THE TRIBUNAL DECIDE D THE ISSUE AGAINST THE ASSESSEE , OBSERVING THAT THE DECISION OF THE MAD R AS HIGH COU R T IN THE C A S E OF J AIN HOUSING (SUPRA) WAS AGAINST THE ASSESSEE. A T THIS JUNCTURE , IT WAS SUBMITTED BY THE LEARNED COUNSEL THAT THE SAID JUDGMENT OF THE MARAS HIGH COU R T WAS IN FAVOUR OF THE ASSESSEE AND THE MADRAS HIGH COU R T IN THAT CASE HAD HELD THAT THE PROVISIONS OF AMENDED SECTION 80IB(10), WHICH WERE EFFECTIVE FROM 1.4.2005, WERE NO T APPLICABLE TO THAT ASSESSEE AS THE PERMISSION W AS RECEIVED MUCH BEFORE THE AMENDME NT CAME INTO FORCE AND HENCE COMPLETION C E RTIFICATE CANNOT BE IN S I S TED UPON. I N TH E C A S E OF ASSESSEE AS WELL , THE APPROVAL F O R THE PROJECT WAS RECEIVED M UCH BEFORE 1.4.2005 AND THEREFORE FOR THE PU R PO S E OF CLAIMING DEDUCTION UN D ER S.80(IB(10) OF TH E ACT , THE P R OVIS I ON S THAT EXISTED BEFORE AMENDMENT OF S. 8 0IB(10)OF THE ACT WOULD APPLY TO THE FACTS OF TH E PRESENT CA S E, AND CON SE QUENTLY, THE DECISION OF THE MADRAS HIGH C OU R T CITED ABOVE IS IN NO WAY AGAINST THE ASSESSEE , AND AT THE MOST, I T COULD HAVE BEEN HELD T H AT THE S A ID JUDGMENT IS NO T APPLICABLE TO THE F ACTS OF THE ASSESSEES CASE. IN ANY EVENT, IT IS SUBMITTED, DULY FURNISHING A COPY OF THE ORDER OF THIS TRIBUNAL DATED 30.10.2012 IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2008 - 09 AND 2007 - 08 IN ITA NOS.103/HYD/2012 AND 262/HYD/2011, THAT FOR THOSE YEARS, THE MATTER WAS RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, AFTER EXAMINING ALL THE RELEVANT ASPECTS INCLUDING THE COMPLETION CERTIFICATE, ETC., AND THAT BEING SO, THE ORDER OF THE TRIBUNAL FOR THE YEAR UNDER CONSIDERATION NEEDS RECTIFICATION, BEING NOT IN CONSISTENCE WITH THE VIEW TAKEN MA NO. 32 /HYD/2014 (IN ITA NO. 850 / HYD/20 10 ) M/S. RV NI RMAN PRIVATE LIMITED, HYDERABAD 3 FOR THE YEARS NOTED ABOVE. IT IS ACCORDINGLY PRAYED THAT THE ORDER OF THE T R IBUNAL DATED 25.9.2013 IS LIABLE TO BE RECTIFIED/RECAL LED. 3. LEARNED DEPARTMENTAL REPRESENTATIVE ON THE CONTRARY, STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 25.9.2013. 4. WE HEARD BOTH SIDES AND PERUSED THE MATERIAL ON RECORD, IN THE LIGHT OF THE PRESENT APPLICATION OF THE ASSESSEE AND THE ORDER OF THIS TRIBUNAL DATED 25.9.2013. A PERUSAL OF THE ORDER OF THIS T RIBUNAL DATED 25.9.2013 IN THE LIGHT OF THE VARIOUS CON T E N TIONS / AVERMENTS OF THE ASSESSEE BEFORE US IN TH E COU R SE OF PRESENT PROCEEDINGS REVEAL THAT THE ASSESSEE IS MERELY DISPUTING THE FINDING OF THE TRIBUNAL, WITH REGARD TO APPLICABILITY OF THE MADRAS HIGH COURT IN THECA E OF JAIN HOUSING & CONSTRUCTION LTD. (SUPRA) TO THE FACTS OF THE PRESENT CASE, SUPPORTING HIS CONTENTION IN THIS BEHALF WITH THE IMPRESSION THAT ACCORDING TO HIM, THE BENCH GAVE AT THE TIME OF APPEAL HEARING. IN ANY EVENT, THE TRIBUNAL IN ITS ORDER DATED 25.9.2013 HAS CONSCIOUS FINDING AS TO THE AP PLICABILITY OF THE ABOVE DECISION AND ADMISSIBILITY OF THE ASSESSEES CLAIM FOR RELIEF UNDER S.80IB (10) OF THE ACT, AND ALL THAT THE ASSESSEE IS SEEKING BY THE PRESENT APPLICATION IS A MERE REVIEW OF THE SAID DECISION OF THE TRIBUNAL, WHICH IS NOT PERMISSI BLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF OBVIOUS/PATENT MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL PASSED UNDER S.254(1) OF THE ACT. 5. AS FOR THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASES FOR THE ASSESSMENT YEARS 2008 - 09 AND 2007 - 08 (IN ITA NOS.103//HYD/2012 AND 262/HYD/2011) , BROUGHT TO OUR NOTICE BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE SAME WAS NOT BROUGHT ON RECORD AT THE T IME HEARING ON THE APPEAL FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. AS SUCH, IT COULD NOT BE SAID THAT THE TRIBUNAL OMITTED TO CONSIDER THE SAME, AND ON THAT COUNT, THERE WAS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. STILL, IT IS A S ETTLED POSITION MA NO. 32 /HYD/2014 (IN ITA NO. 850 / HYD/20 10 ) M/S. RV NI RMAN PRIVATE LIMITED, HYDERABAD 4 OF LAW THAT NON - CONSIDERATION OF A DECISION OR EVEN A SUBSEQUENTLY RENDERED DECISION, BINDING ON AN APPELLATE AUTHORITY, IS A MISTAKE APPARENT FROM RECORD. IN THIS VIEW OF THE MATTER AND KEEPING IN MIND THE PRINCIPLE OF CONSISTENCY, WE AR E OF THE OPINION THAT FOR THE YEAR UNDER CONSIDERATION ALSO, AS WAS DONE FOR THE OTHER YEARS NOTED ABOVE, THE DECISION OF THE PUNE BENCH IN THE CASE OF SATISH BORA & ASSOCIATES (ITA NO.713 & 714/PN/2010) DATED 7.1.2011 HAS TO BE APPLIED TO THE FACTS OF TH E PRESENT CASE. HENCE, IN VIEW OF ORDER OF THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEARS 2008 - 09 AND 2007 - 08 VIDE OUR ORDER DATED 30.10.2012, WE MODIFY OUR ORDER, AND SET ASIDE THE ISSUE RELATING TO ALLOWABILITY OF RELIEF UNDER S.80IB(10) TO THE FILE OF THE CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE KEEPING IN MIND THE ABOVE ORDER OF THE TRIBUNAL DATED 30.10.2012 FOR THOSE YEARS, OF COURSE, AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. CONSEQUENTLY, MODIFYING OUR ORDER DATED 30.10.2 012, ASSESSEES APPEAL ITA NO.850/HYD/2010 IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ASSESSEES MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 28.3.2014 SD/ - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 28 TH M ARCH , 2014 COPY FORWARDED TO: 1. M/S. RV NIRMAN PRIVATE LIMITED 8 - 2 - 268/1/16/B/1,SAINIKETAKAN COLONY, ROAD NO.3, BANJARA HILLS, HYDERABAD MA NO. 32 /HYD/2014 (IN ITA NO. 850 / HYD/20 10 ) M/S. RV NI RMAN PRIVATE LIMITED, HYDERABAD 5 2 . DY. COMMISSIONER OF INCOME - TAX CIRCLE 3(1), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I V HYDERABAD 4. COMMISSIONER OF INCOME - TAX III , HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S