Syed Sikandera Ali, Hyd, Hyderabad V. ITO, Ward-6(3), Hyd, Hyderabad

MA 37/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3385 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 28-07-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 28-03-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital asset
• Section: 54; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad Benches “A” : Hyderabad Before Shri Rama Kanta Panda, Accountant Member AND Shri K.Narasimha Chary, Judicial Member O R D E R Per K. Narasimha Chary, J.M. By way of this Miscellaneous Application, Shri Syed Sikander Ali (“the assessee”) requested the Tribunal to recall the order dated 02/09/2021 in ITA No.781/Hyd/2015 for the assessment year 2010-11 on the ground that the Bench did not consider his submissions in its proper perspective in the light of the case law discussed by them in the written submissions. M.A. No. 37/Hyd/2022 (in ITA No.781/Hyd/2015) Assessment Year: 2010-11 Syed Sikander Ali, Hyderabad PAN : ACVPA4441Q Vs. ITO,Ward-6(3) Hyderabad (Applicant) (Respondent) Assessee by: Shri P.N.Moorthy, Revenue by : Shri K.P.R.R.Murty, Date of hearing: 29/07/2022 Date of pronouncement: 29/07/2022 M.A.No. 37/Hyd/2022 Page 2 of 7 2. According to the assessee, at the time of hearing, an elaborate written submissions stating that the sale deed dated 20/04/2009 was for the purpose of obtaining a loan from M/s. India Bulls, but not for any other purpose and submitted his intention in his written submissions citing the decisions on that aspect. According to him, the contents of the Memorandum of Understanding (MoU) dated 16/04/2009 at page No.6 to the effect that the purchaser had already paid the entire sale consideration of Rs. 3,00,67,000/- to vendor as per the MoU. His grievance is that the Bench failed to peruse the grounds of appeal and the written submissions that the intention of the assessee in respect of the alleged sale was not the transfer of property for any consideration, but only to obtain a loan, and, therefore, the registered deed under section 54 of the Transfer of Property Act (TP Act) shall be read as a whole in consonance with Section 8 of the TP Act. Learned AR further submitted that the Bench relied on the decision of the Hon'ble Apex Court in the case of CIT Vs. Balbir Singh Maini (2017) 86 Taxman 94 (SC) and CIT Vs. KY Pillaiah (1967) 63 ITR 411 (SC) wherein the issue was the applicability of Section 53A of the TP Act. The sum and substance and grievance of the assessee is that there is error in the judgment of the Tribunal as a result of not appreciating the contentions of the assessee in the perspective in which they are projected on behalf of the assessee in the written submissions. 3. Learned DR submitted that the Bench had adjudicated the case of the assessee on merits and the assessee does not point out the mistake apparent on the face of record, but harps on the error in M.A.No. 37/Hyd/2022 Page 3 of 7 judgment resulted by not considering his case in its proper perspective. He further submits that in a number of cases, it is held that error in judgment is not mistake apparent on record, and any attempt to re- appreciate the contents of the documents or the contentions of the parties would be reviewing the judgment, which is not permissible under section 254 of the Act. In this connection, he placed reliance on the decision of the Hon'ble Apex Court in the case of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 4. We have gone through the record in the light of the submissions made on either side. The question now that arises for our consideration is whether any error in judgment which alleged to have been the result of non-consideration of the submissions made on behalf of the assessee in the perspective in which they were projected, would constitute an error apparent on record, so as to be recalled by the Tribunal in exercise of powers under section 254(2) of the Act. 5. Under section 254(2) of the Act, the Tribunal may at any time within six months from the end of the month in which the order was passed, with a view to rectify any mistake apparent from record, amend any order passed by it under sub-section (1), and shall make such an amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. It is, therefore, incumbent upon the miscellaneous applicant to point out that there is mistake in the order that is apparent from the record. This aspect has been considered by the Hon'ble Apex Court in the case of Reliance Telecom Ltd. (supra). M.A.No. 37/Hyd/2022 Page 4 of 7 6. In the case of Reliance Telecom Ltd. (supra), Hon'ble Apex Court 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 assessee was to prefer an appeal before the High Court. Observing so, the Hon'ble Supreme Court, in the M.A.No. 37/Hyd/2022 Page 5 of 7 case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order. 7. In this case, we find that the Tribunal passed detailed order, dismissing the appeal filed by the assessee. Order of the Ld. CIT(A) is thoroughly extracted and discussed. Contents and impact of the MoU dated 16/04/2009, transaction there under, and the case law are discussed, with specific reference to the provisions under section 2(47)(v) of the Act in the light of the ratio laid down by the Hon'ble Supreme Court in the case of Balbir Singh Maini (supra) and KY Pillaiah (supra). All the applications/petitions of the assessee seeking admission of additional grounds and evidence were disposed-of in the light of the detailed discussed made in the order. The long drawn reasoning in the order of the Tribunal resulted in the dismissal of the assessee’s appeal. Long drawn reasoning is anti-thesis to the mistake apparent on the face of record. 8. By no stretch of imagination, therefore, could we say that the order dated 02/09/2021 suffer any mistake apparent on the face of record. Recalling of such an order, in our opinion, would amount to review of the same, which is not permissible in view of the above observations of the Hon'ble Apex Court in the case of Reliance Telecom Ltd. (supra). Respectfully following the decision of the Hon’ble Supreme Court in the case of Reliance Telecom Ltd.(supra), we find that with passing of the order dated 02/09/2021 in ITA No. 781/Hyd/2015 on merits, the Tribunal has become functus officio and the prayer of the M.A.No. 37/Hyd/2022 Page 6 of 7 assessee to recall the same is impermissible under law. Consequently, we decline to grant the prayer of the assessee. 9. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on 29 th July, 2022 Sd/- Sd/- (RAMA KANTA PANDA) ACCOUNTANT MEMBER (K.NARASIMHA CHARY ) JUDICIAL MEMBER Hyderabad, dated 29/07/2022. TNMM M.A.No. 37/Hyd/2022 Page 7 of 7 Copy to: 1 Syed Sikander Ali, C/o S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad 2 ITO,Ward-6(3),Hyderabad. 3 CIT(Appeals)-4 Hyderabad. 4 CIT, Hyderabad. 5 DR, ITAT Hyderabad. 6 Guard File TURE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD