Chandulal Patel, Hyd, Hyderabad V. ACIT, Circle-5(1), Hyd, Hyderabad

MA 34/Hyd/2022

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8639 (ITAT-HYDERABAD)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-11-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 10-11-2022
• Assessment Year: misc
• Appeal Filed On: 01-03-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAMESH CHAND JAIN
• Keywords: Business income; Commercial expediency; Set aside
• Section: 254(2)

Judgement Text

आयकर अपील य अ धकरण , हैदराबाद पीठ म IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER व.आवे.सं / M.A. No. 34/Hyd/2022 (Arising out of ITA No. 1198/Hyd/2016) ( नधा रण वष / Assessment Year: 2009-10 ) Chandulal Patel 4-4-296/29,Mithila Complex Bank Street, Koti Hyderabad [PAN : AAOPP2359P] Vs Assistant Commissioner of Income Tax,Circle-5(1), Hyderabad (आवेदक / Applicant) ( यथ / Respondent) नधा रती वारा / Assessee by: Shri Ramesh Chand Jain, CA राज व वारा / Revenue by: Shri Ajith Kumar Laskar, स ु नवाई क तार ख/Date of hearing: 11/11/2022 घोषणा क तार ख/Pronouncement on: 11/11/2022 आदे श / ORDER PER K. NARASIMHA CHARY, JM: This Miscellaneous Application is filed with a prayer to recall the order dated 20/12/2021 passed in ITA No. 1198/Hyd/2016 on the plea that while disposing of the appeal, the Bench did not consider the contention MA No.34/Hyd/2022 Page 2 of 5 of the assessee in its proper perspective in respect of the interest expenditure that was claimed under the head income from other sources. 2. It is the argument of the Ld. AR that there is no separate column in the return of income for claiming the reduction in the interest expenditure under business income, and, therefore, the same was claimed under the head other sources and it was also brought to the notice of the Bench by way of written submissions, but merely because the same was claimed under section 57 (iii) of the Act instead of claiming the same under section 36 of the Act the same cannot be disallowed. 3. Per contra, it is the submission of the Ld. DR that while disposing of the appeal, the Bench noticed this ground and consider the contention of the assessee that the assessee advanced its interest bearing funds to proprietary concern by following the commercial expediency only, but the Bench observed that such commercial expediency is nowhere a subject matter of section 57(iii) of the Act. 4. According to the Ld. DR what had to be argued in the appeal cannot be pressed into service to recall the orders passed after an elaborate discussion on all the grounds. According to him, if this sort of practice is allowed, the party who lost the matter will go on seeking the recall of the orders on the grounds which they fail to press into service at the time of arguing the appeal itself. He submits that section 254(2) of the Act is not meant for the purpose of perennial continuation of the proceedings by taking various pleas one after the other, by seeking the orders recalled in perpetuation. Public policy demands that there shall be finality to the proceedings at one stage or the other. He relied upon the decision of the Hon’ble Apex Court in the cases of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 5. We have gone through the record in the light of the submissions made on either side. The grounds now urged by the assessee do not seem MA No.34/Hyd/2022 Page 3 of 5 to have been pressed at the time of hearing of the appeal itself and the Tribunal having considered the contentions raised by the assessee at the time of arguments disposed of the appeal on merits. We are in agreement with the Learned DR that section 254(2) of the Act is not meant for the purpose of perennial continuation of the proceedings by taking various pleas one after the other, by seeking the orders recalled in perpetuation. Public policy demands that there shall be finality to the proceedings at one stage or the other. 6. Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) 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 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 MA No.34/Hyd/2022 Page 4 of 5 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. 7. It is clear that the Hon'ble Apex Court held in unequivocal terms 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. It covers in respect of both facts and law. 8. In Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal No 5041 of 2021 by order dated 04/10/2021 Hon'ble Apex Court observed that,- “12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].” 9. Further Hon'ble Apex Court Ghanashyam Mishra & sons Private Limited VS. Edelweiss Asset Reconstruction Company Limited & Ors in IA No. 76416/2021 (M.A. No.1166 of 2021) by order dated 17/8/2022 deprecated the growing tendency of indirectly seeking review of the orders of the Court by filing applications either seeking modification or clarification of the orders. MA No.34/Hyd/2022 Page 5 of 5 10. In view of this factual and legal position, we do not see any reason to recall the order in question. Miscellaneous Application is accordingly dismissed. Order pronounced in the open court on this the 11 th day of November, 2022. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 11/11/2022 Thirumalesh, Sr.PS Copy forwarded to: 1. Chandulal Patel, 4-4-296/29,Mithila Complex, Bank Street, Koti Hyderabad 2. Assistant Commissioner of Income Tax,Circle-5(1), Hyderabad 3.CIT(Appeals)-4, Hyderabad. 4.Pr.CIT-4,Hyderabad. 5.DR, ITAT, Hyderabad. 6.GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD