Ramky Enviro Engineer Ltd., Hyd, Hyderabad V. ACIT, Cirlce-2(4), Hyd, Hyderabad

MA 38/Hyd/2021

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 6844 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Assessment Year: 2011-2012
• Appeal Filed On: 17-06-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y V S T SAI
• Assessee Lawyers: AJIT TOLANI
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”: HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SH RI SAT B EER S INGH GO DA RA , JU DI CIA L MEMBE R AND SHR I L AXMI PR AS A D SAHU , AC COUNT ANT MEMBE R M.A.No. 38/Hyd/2021 (in ITA No. 449/H/2016 Assessment Year: 2011-12 Ramky Enviro Engineers Ltd., Hyderabad. PAN – AAACR 9626A Vs. Asst. Commissioner of Income-tax, Circle – 2(4), Hyderabad. (Appellant) (Respondent) Assessee by: Shri Ajit Tolani Revenue by: Shri YVST Sai,CIT-DR Date of hearing: 22/10/2021 Date of pronouncement: 07/12/2021 O R D E R PER L. P. SAHU, A.M.: This Miscellaneous Application is filed by the assessee u/s 254(2) of the Income Tax Act seeking rectification/modification of the order of the Tribunal dated 19/03/2021 in ITA No. 449/Hyd/2016. 2. In the MA, the assessee, inter-alia stated as under: 7.8 Non-adjudication of following other issues raised by the Assessee due to denial of proper opportunity: M.A. No. 38/Hyd/2021 R a m k y E n v i r o E n g i n e e r s L t d . , H y d . :- 2 -: • Not appreciating that the shareholder's corporate guarantee is beneficial and in the interest of Ramky Enviro Engineers Ltd; • Not undertaking an objective analysis while determining the ALP on the shareholder's corporate guarantee; • Discriminating the AE's by determining the ALP for the corporate guarantee provided to AE's vis-a-vis similar guarantee provided by the Company to subsidiaries and others in India in violation of Article 26 of India - Singapore Double Taxation Avoidance Agreement. (DTAA); • Without prejudice, not undertaking an objective analysis for determining the ALP on the corporate guarantee/letter of comfort and determine the ALP based on the bank guarantee rates available on the State Bank of India (SBI) website; • Without prejudice, not appreciating the judicial precedents on similar corporate guarantees. • Without prejudice to the above, not appreciating and accepting internal comparable guarantee transactions of the Assessee for the benchmarking purposes. • Not making adjustments for the differences in the comparable transactions vis-a-vis shareholder's corporate guarantee;" It is respectfully submitted that all the mistakes mentioned above are apparent from the record, which have crept in the order of ITAT, deserve to be rectified. These mistakes have lead to miscarriage of justice and are causing acute hardship to the Assessee.” M.A. No. 38/Hyd/2021 R a m k y E n v i r o E n g i n e e r s L t d . , H y d . :- 3 -: 3. The ld. DR, on the other hand, relied on the order passed by the ITAT. 4. We have considered the rival submissions and perused the material on record. In Para No. 7 of M.A., the ld. AR alleged that proper opportunity was no granted. In this connection, it is observed that the appeal was filed before the ITAT 29/03/2016 and since then, as per order sheet entries, we find that the AR of the assessee sought umpteen number of adjournments, viz., 13/10/2016, 17/04/2017, 01/08/2018, 06/03/2018, 06/06/2018, 17/09/2019, 11/03/2020, 16/12/2020 and finally, the case was heard on 13/01/2021. Therefore, the allegation made by the ld. AR of the assessee that proper opportunity was not granted as per Para no. 7 of the M.A., is hereby rejected. With regard to other submissions made in the M.A., we have already considered all the relevant points while passing the order. Therefore, according to us, there is no mistake apparent on record and the ld. AR of the assessee tried to recall/modify the order, which amounts to review of the order, which is not permissible as per law as the ITAT does not have power to review its own order in the garb of power vested u/s 254(2) of the Act. Therefore, recalling of the order in this case as sought by the Authorized Representative will tantamount to review of the order which is not permitted under the law. This power is not vested with the Tribunal. For this proposition, we rely on M.A. No. 38/Hyd/2021 R a m k y E n v i r o E n g i n e e r s L t d . , H y d . :- 4 -: the decision of the ITAT, Mumbai Benches in the case of Gateway Terminals India Pvt. Ltd. Vs. DCIT, [2021] 128 Taxmann.com 314 and the judgment of the Hon’ble Supreme Court in the case of CIT Vs. M/s Reliance Telecom Ltd., Civil Appeal Nos. 7110 & 7111 of 2021 vide order dated 3 rd December, 2021. Accordingly, we dismiss the MA filed by the assessee. 5. In the result, MA filed by the assessee is dismissed in above terms. Pronounced in the open court on 7 th December, 2021. Sd/- Sd/- (S.S. GODARA) (LAXMI PRASAD SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 7 th December, 2021. kv copy to : 1 Ramky Enviro Engineers Ltd., Ramky Towers Complex, Gachibowli, Hyderabad – 500 032 2 ACIT, Circle – 2(4), 3 rd Floor, Posnett Bhavan, Ramkoti, Tilak Road, Hyderabad – 500 001. 3 DRP – 1, Begaluru. 4 Pr. CIT (Central Range) Hyderabad 5 ITAT, DR, Hyderabad. 6 Guard File. M.A. No. 38/Hyd/2021 R a m k y E n v i r o E n g i n e e r s L t d . , H y d . :- 5 -: S.No. Details Date 1 Dra ft dictated on 2 Dra ft pla ced bef ore autho r 3 Dra ft proposed & pla ced befo re t he Second Membe r 4 Dra ft disc ussed/app ro ved by Second Member 5 Appro ved D ra ft c om es to t he S r. PS/PS 6 Kept fo r p rono unce ment 7 File sent t o Be nch Cl erk 8 Date on whic h the fi l e goe s to Head Cle rk 9 Date on whic h fi le go es to A.R. 10 Date o f Di spatc h o f o rder