M/s Ushodaya Enterprises Limited, Hyderabad V. ACIT, Circle - 15(2) (TDS), Hyderabad

MA 4/HYD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1634 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 13-12-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Recovery proceedings; Opportunity of being heard; Period of limitation; Right to appeal; Time period of passing order
• Section: 260A; 194C; 201(1); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA NO. 04/HYD/2014 IN ITA NO. 1516/HYD/2008 AY 2001-02 MA NO. 05/HYD/2014 ITA NO. 314/HYD/2012 A.Y. 2002-03 MA NO. 06/HYD/2014 ITA NO. 315/HYD/2012 A.Y. 2003-04 M/S. USHODAYA ENTERPRISES LTD., HYDERABAD PAN: AAACU2690P VS. THE ASST. CIT CIRCLE-15(2) (TDS) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI K. GOPAL RESPONDENT BY: SRI JEEVAN LAL LAVIDIYA DATE OF HEARING: 28 .0 2 .201 4 DATE OF PRONOUNCEMENT: 26.03.2014 O R D E R PER CHANDRA POOJARI, AM: THE ABOVE THREE MISCELLANEOUS APPLICATIONS (MAS) F ILED BY THE ASSESSEE ARE SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 8 TH AUGUST, 2013 IN ITA NOS. 1516/HYD/2008, 314/HYD/2012 AND 315/HYD/2012 FOR A.YS. 2001-02 TO 2003-04. 2. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL HAD DISP OSED OFF THE ABOVE NUMBERED APPEAL, FILED BY THE DEPARTMENT, BY A COMMON ORDER DATED 08-08-2013. THE COMMON ORDER PAS SED BY THE TRIBUNAL COVERED THREE A.YS. 2001-02, 2002-03 A ND 2003-04. THE MAIN ISSUE IN THESE APPEALS WAS WHETHER THE ORD ERS U/S. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 2 201(1) AND 201(LA) PASSED BY THE AO WERE BARRED BY LIMITATION. DURING THE COURSE OF HEARING OF THE APPEALS, THE DE PARTMENT SUBMITTED THAT THE LIMITATION FOR RECOVERY OF TAX W AS PROVIDED BY SEC. 231 R.W.S 201(1) AND 201(1A) OF THE INCOME-TAX ACT, 1961 AND THAT WITH THE OMISSION OF SEC. 231 BY DIRECT TAX LA WS (AMENDMENT) ACT, 1987 W.E.F. 1-4-1989, THERE WAS NO LIMITATION PERIOD PRESCRIBED FOR RECOVERY OF TAXES. THE DEPAR TMENT ALSO SUBMITTED THAT THE CIT(A) RELIED ON THE DECISION GI VEN BY THE TRIBUNAL IN THE CASE OF AP STATE CIVIL SUPPLIES COR PORATION IN ITA NO. 1117 TO 1122/HYD/07 FOR A.YS. 1999-00 TO 2004-0 5 BY ITS ORDER DATED 01.08.2008 BUT THAT THE DEPARTMENT DID NOT ACCEPT THE SAID DECISION AND WENT IN APPEAL U/S. 260A BEFO RE THE HIGH COURT OF A.P. THE DEPARTMENT ALSO RELIED ON THE OR DER OF THE SPECIAL BENCH OF THE TRIBUNAL, MUMBAI IN THE CASE O F M/S. MAHINDRA AND MAHINDRA LTD. VS DCIT (ITA NOS. 2606,2 607, 2613 AND 2614/MUM/2000 FOR A.Y. 1998-99). BASED ON THE RATIO OF THE SAID DECISION IT WAS SUBMITTED BY THE DEPARTMENT TH AT TAX DUE AS A RESULT OF ASSESSING OFFICER'S ORDER BEING MUCH MO RE THAN RS. ONE LAKH RUPEES EACH, THE PROCEEDINGS IN THE ASSESS EE'S CASE WERE INITIATED AND COMPLETED WELL WITHIN THE TIME LIMIT OF 6 YEARS PRESCRIBED FOR COMPLETING THE REASSESSMENT PROCEEDI NGS U/S. 147 R.W.S. 149 OF THE ACT AND HENCE, THE ORDER PASSED B Y THE ASSESSING OFFICER WAS WELL WITHIN TIME AND NOT BARRED BY LIMI TATION. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 3 3. THE DEPARTMENT ALSO SUBMITTED THAT IT IS A SETTLED PROPOSITION IN LAW THAT WHEN NO PROVISION FOR LIMIT ATION HAS BEEN INCORPORATED IN THE STATUTE, THE COURTS CANNOT INTR ODUCE SUCH LIMITATION. IN THIS CONNECTION, THE DEPARTMENT RELI ED ON THE DECISION OF THE APEX COURT IN THE CASE OF HINDUSTAN TIMES VS UNION OF INDIA AND OTHERS (ORDER DATED 07-01-1998). THE ASSESSEE PLEADED BEFORE THE TRIBUNAL THAT THE MERE FACT THAT THE DEPARTMENT HAS FILED APPEAL AGAINST THE DECISION OF THE TRIBUNAL IN THE CASE OF AP STATE CIVIL SUPPLIES CORPORATION DOE S NOT DETRACT FROM THE APPLICABILITY OF THE RATIO OF THE SAID DEC ISION TO THE RESPONDENT'S CASE. THE ASSESSEE ALSO PLEADED BEFORE THE TRIBUNAL THAT IN PARAGRAPH 17.10 OF THE ORDER IN THE CASE OF M/S. MAHINDRA AND MAHINDRA LTD., 122 DJ 577 (MUM) (SB) THE TRIBUN AL HELD THAT PASSING AN ORDER U/S. 201(1) AND 201(LA) HAS TO BE WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH PROCEED INGS U/S. 201(1) HAVE BEEN INITIATED. THE ASSESSEE ALSO POINT ED OUT BEFORE THE TRIBUNAL THAT IN THE CASE OF M/S. MAHINDRA AND MAHINDRA LTD, THE SPECIAL BENCH OF THE TRIBUNAL DISTINGUISHED THE DECISION OF THE APEX COURT IN HINDUSTAN TIMES IN PARAGRAPHS 14.3 AN D 14.4 OF THE ORDER OF THE SPECIAL BENCH. AFTER CONSIDERING T HE SUBMISSIONS MADE BY BOTH SIDES THE TRIBUNAL OBSERVED AS UNDER I N PARAGRAPH 13 OF ITS ORDER: '13. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE A COMMON ORDER WAS PASS ED U/S 201 (1) & 201 (LA) ON 02/04/2008 FOR THE A YS 2001-02, 2002-03 & 2003-04. THE CONTENTION OF THE ASSESSEE'S COUNSEL I S THAT IN VIEW OF MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 4 THE JUDGMENT OF THE SPECIAL BENCH IN THE CASE OF MA HINDRA & MAHINDRA VS. DCLT, 122 TT) 577 (SBJ(MUM.), THE ORDE R PASSED BY THE ASSESSING OFFICER IS BARRED BY LIMITATION AS TH E ORDER HAS NOT BEEN PASSED WITHIN A PERIOD OF 4 YEARS FROM THE END OF THE RELEVANT AY'. 4. THE AR SUBMITTED THAT IN VIEW OF THE SPECIAL BENCH DECISION IN THE CASE OF MAHINDRA AND MAHINDRA LTD. (SUPRA) T HAT PASSING OF ORDER U/S. 201(1) AND 201(LA) HAS TO BE WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH PROCEEDINGS U/S. 201(1) HAVE BEEN INITIATED. HOWEVER, THE TRIBUNAL HAD GIVEN FI NDING IN PARAGRAPH 13 OF ITS ORDER AS UNDER: '13 ... WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE ITAT SPECIAL BENCH, MUMBAI IN THE CASE OF MAHINDRA & MAH INDRA (SUPRA) WHEREIN IT WAS HELD THAT MAXIMUM TIME LIMIT FOR PASSING THE ORDER U/S 201(1) AND 201(LA) IS THE SAME AS PRE SCRIBED UNDER SECTION 149 OF THE ACT, I.E., 4 YEARS OR 6 YEARS FR OM THE END OF THE RELEVANT AY, AS THE CASE MAY BE DEPENDING UPON THE AMOUNT OF INCOME IN RESPECT OF WHICH THE PERSON RESPONSIBLE I S SOUGHT TO BE TREATED AS THE ASSESSEE IN DEFAULT. THE ORDER PASSE D U/S 201(1) OR 201(LA) CANNOT BE HELD AS BARRED BY LIMITATION IF I T IS PASSED WITHIN 4 YEARS FROM THE END OF THE RELEVANT A.YS. O R 6 YEARS AS THE CASE MAY BE. IN THE PRESENT CASE, TIME LIMIT AVAILA BLE FOR PASSING THE ORDER U/S 201(1) AND 201 (LA) IS AS FOLLOWS: SL. NO. A.Y. TIME LIMIT AVAILABLE FOR PASSING ORDER ACTUAL DATE OF PASSING ORDER 1. 2001-02 31.03.2008 02.04.2008 2. 2002-03 31.03.2009 -DO- 3. 2003-04 31.03.2010 -DO- 5. THE AR SUBMITTED THAT THE SPECIAL BENCH, MUMBAI, IT AT HELD AS UNDER IN THE CASE OF M/S. MAHINDRA AND MAHI NDRA (SUPRA) AND DREW OUR ATTENTION PARTICULARLY TO THE LAST SEN TENCE IN PARAGRAPH 17.10 OF THE SAID ORDER: MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 5 'THE COMPLETION OF PROCEEDINGS U/S.201(1), THAT IS THE PASSING OF THE ORDER UNDER THIS SUB-SECTION, HAS TO BE WITHIN ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH PROCEEDINGS U/S. 201(1) WERE INITIATED. SAME TIME LIMITS FOR INITIATION AND PASSING OF ORDERS WILL BE VALID FOR THE PASSING OF ORDER U/S. 201(1A) ALSO. WE HOLD ACCORDINGLY.' 6. THE AR SUBMITTED THAT THE TRIBUNAL RECORDED FACTS R ELATING TO INITIATION OF PROCEEDINGS U/S. 201(1)(201(LA) IN PARAGRAPH 3 OF ITS ORDER AS PER WHICH A SURVEY WAS CARRIED OUT IN THE CASE OF THE ASSESSEE. THIS SURVEY WAS CARRIED OUT ON 03-03-2006 AS RECORDED BY AO IN 1 ST PARA OF THE ORDER U/S. 201(1)/201(1A). SUBSEQUENT TO THE SURVEY, SHOW CAUSE LETTER WAS ISSUED TO THE ASS ESSEE SEEKING VARIOUS INFORMATIONS. DURING POST-SURVEY ENQUIRIES , AND ANALYSIS OF INFORMATION SUBMITTED BY THE ASSESSEE, THE ASSES SING OFFICER FOUND DEFAULTS IN TDS FOR THE A.YS. 2001-02 TO 2003 -04. HAVING DECIDED THE ISSUE OF LIMITATION BASED ON THE RATIO OF THE DECISION OF THE SPECIAL BENCH MUMBAI IN THE CASE OF MAHINDRA AN D MAHINDRA, THE TRIBUNAL OUGHT TO HAVE HELD THAT ALL THE THREE ORDERS DATED 02- 04-2008 PASSED BY THE AO ARE BARRED BY LIMITATION. IN THE FACE OF THE UNAMBIGUOUS DECISION OF THE SPECIAL BENCH EXTRA CTED ABOVE, THE DECISION OF THE TRIBUNAL THAT THE ORDERS FOR A. YS. 2002-03 AND 2003-04 ARE NOT BARRED BY LIMITATION CONSTITUTES A MISTAKE APPARENT FROM RECORD. THE AR FURTHER SUBMITTED THAT THE TRIBUNAL WENT ON TO RECORD ITS FINDING IN PARAGRAPHS 14 AND 15 OF ITS ORDER AS UNDER: '14. AS SEEN FROM THE ABOVE TABLE, THE ORDER PASSED [OR AY 2001- 02 U/S 201(1) AND 201(LA) ON 02/04/2008 AS THE TIME LIMIT FOR PASSING THE ORDER WAS 31/03/2008, THEREFORE, THE OR DER PASSED FOR MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 6 AY 2001-02 IS BARRED BY LIMITATION. HOWEVER, FOR TH E A.YS. 2002- 03 AND 2003-04, THE ORDER WAS PASSED WITHIN TIME I. E. WITHIN 6 YEARS FROM THE END OF THE RELEVANT A.YS. AS THE ORD ER PASSED ON 02/04/2008. THEREFORE, THE ORDER PASSED IN AY 2002- 03 AND 2003- 04 CANNOT BE HELD AS BARRED BY LIMITATION. 15. IN VIEW OF THE ORDER OF THE SPECIAL BENCH OF IT A T, MUMBAI IN CASE OF MAHINDRA AND MAHINDRA (SUPRA), WE ARE INCLI NED TO HOLD THAT THE ORDER PASSED U/S 201(1) AND 201 (LA) FOR T HE ASSESSMENT YEARS 2002-03 AND 2003-04 IS NOT BARRED BY LIMITATI ON AND THE SAME IS VALID, THEREFORE, TO THAT EXTENT THE CLT(A) IS NOT CORRECT IN ANNULLING THE ORDER PASSED U/S 201(1) AND 201 (LA) OF THE ACT FOR THE A.YS. 2002-03 AND 2003-04'. 7. THE AR SUBMITTED THAT HAVING HELD THAT ITS DECISION IS BASED ON THE RATIO OF THE DECISION OF SPL. BENCH MUMBAI I N THE CASE OF M/S. MAHINDRA AND MAHINDRA, THE CONCLUSIONS REACHED AND THE DECISION RECORDED IN RESPECT OF VALIDITY OR OTHERWI SE OF THE ORDERS PASSED BY THE ASSESSING OFFICER CONSTITUTE MISTAKE APPARENT FROM RECORD BECAUSE THE SAID CONCLUSIONS ARE NOT IN ACCO RDANCE WITH THE TRIBUNAL SPL. BENCH MUMBAI DECISION IN THE CASE OF M/S. MAHINDRA AND MAHINDRA (SUPRA). THE AR ALSO SUBMITT ED THAT THE SUB-PARAGRAPH IN QUOTES, EXTRACTED AT THE BOTTOM OF PARAGRAPH 15 OF THE ORDER OF THE TRIBUNAL IS STATED TO HAVE BEEN EXTRACTED FROM THE JUDGMENT OF THE APEX COURT IN THE CASE OF ITO V S DELHI DEVELOPMENT AUTHORITY (252 ITR 772) (SC). HOWEVER, THE SAID SUB- PARAGRAPH DOES NOT APPEAR IN THE SAID JUDGMENT. THE REFORE THE INSERTION OF THE SAID SUB-PARAGRAPH CONSTITUTES A M ISTAKE APPARENT FROM RECORD. THE AR FURTHER SUBMITTED THAT IN THE LIGHT OF THE AR'S SUBMISSIONS AS ABOVE, THE FINDING IN PARAG RAPHS 16 AND MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 7 17 OF THE ORDER OF THE TRIBUNAL CONSTITUTE A MISTAK E APPARENT FROM RECORD. 8. THE AR ALSO SUBMITTED THAT THOUGH THE FINDING OF TH E TRIBUNAL HAS ULTIMATELY GONE AGAINST THE ASSESSEE I N ITA NO. 1516/HYD/2008, THE DECISION IS BASED ON THE FINDING REACHED BY THE TRIBUNAL THAT THE TIME LIMIT FOR PASSING ORDER U/S. 201(1) AND 201(LA) IS 4 OR 6 YEARS, AS THE CASE MAY BE, FROM T HE END OF THE RELEVANT ASSESSMENT YEAR. THE ASSESSEE HAS, THEREF ORE, FILED THIS PETITION SEEKING RECTIFICATION OF THE ERROR THAT HA S CREPT IN QUOTING THE CORRECT RATIO OF THE DECISION OF THE SPECIAL BE NCH IN THE CASE OF M/S. MAHINDRA AND MAHINDRA (SUPRA). THE AR ALSO SUB MITTED THAT IN THE LIGHT OF THE SUBMISSIONS IN THE PRECEDING PA RAGRAPHS THE CONCLUSIONS DRAWN IN PARAGRAPHS 18 AND 19 CONSTITUT E MISTAKE APPARENT FROM RECORD AND NEED TO BE CHANGED. THE A R PRAYED THAT THE TRIBUNAL MAY RECALL ITS COMMON ORDER IN ITA NO. 1516/HYD/ 2008, DATED 08-08-2013 AND PASS SUCH FURTHER ORDERS AS NECESSARY TO RECTIFY THE MISTAKES APPARENT FROM THE RECORD. 8.1 WITHOUT PREJUDICE TO THE ABOVE ARGUMENT, THE L EARNED AR SUBMITTED THAT FOR A.YS. 2002-03 AND 2003-04, THE T RIBUNAL OUGHT TO HAVE REMITTED THE ISSUE TO THE FILE OF THE CIT(A ) SO AS TO DECIDE THE ISSUE ON MERIT AS THE CIT(A) FAILED TO ADJUDICA TE THE GROUNDS RAISED BY THE ASSESSEE WITH REGARD TO LIABILITY OF THE ASSESSEE TO DEDUCT TDS ON THE IMPUGNED PAYMENT AS THE CIT(A) QU ASHED THE MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 8 ORDER PASSED U/S. 201(1) AND 201(1A) OF THE ACT. F URTHER, HE SUBMITTED THAT EVEN OTHERWISE THE ASSESSEE'S CASE I S SQUARELY COVERED BY THE JUDGEMENT OF SUPREME COURT IN THE CA SE OF HINDUSTAN COCO-COLA BEVERAGE PVT. LTD. VS. CIT (293 ITR 226) IS ALSO REQUIRED TO BE CONSIDERED BY THE CIT(A). FURT HER IT IS PERTINENT TO MENTION HEREIN THAT THE CIT(A) IS REQU IRED TO TAKE NOTE OF THE ABOVE JUDGEMENT AND ALSO THE ORDER OF THE TR IBUNAL IN ASSESSEES OWN CASE FOR SUBSEQUENT ASSESSMENT YEARS BY THE TRIBUNAL IN ITA NOS. 1706 TO 1708/HYD/2008 FOR A.YS . 2004-05 TO 2006-07 ORDER DATED 22.3.2012. 9. THE LEARNED DR SUBMITTED THAT THERE IS NO APPEAL BY THE ASSESSEE AND THE TRIBUNAL DECIDED THE GROUNDS RAISE D BY THE DEPARTMENT. BEING SO, THE ASSESSEE CANNOT RAISE FR ESH GROUNDS IN MA ON ONLY TO DO THE THINGS INDIRECTLY WHAT THAT CO ULD NOT BE DONE DIRECTLY BY FILING THE APPEALS AGAINST THE CIT(A) O RDER. 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE PRIMARY ARGUMENT OF THE ASSESSEE'S COU NSEL IS THAT THE TRIBUNAL NOT FOLLOWED THE ORDER OF THE SPECIAL BENCH MUMBAI IN THE CASE OF MAHINDRA & MAHINDRA (CITED SUPRA). THIS ARGUMENT OF THE ASSESSEE'S COUNSEL IS DEVOID OF MERIT AS THE TRIBUNAL CONSIDERED THE ORDER OF THE SPECIAL BENCH IN PROPER PERSPECTIVE AND DECIDED THE ISSUE. BEING SO, WE DO NOT FIND AN Y MERIT IN THIS ARGUMENT OF THE ASSESSEE'S COUNSEL. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 9 10.1 REGARDING THE OTHER ARGUMENT OF THE ASSESSEE'S COUNSEL, ADMITTEDLY IN THIS CASE, THE REVENUE CAME IN APPEAL BEFORE US AGAINST THE ORDER OF THE CIT(A) WHEREIN THE CIT(A) CANCELLED THE ORDER OF THE AO PASSED U/S. 201(1) AND 201(1A) OF T HE ACT HOLDING THAT THE ORDER IS PASSED BEYOND THE REASONABLE PERI OD OF 4 YEARS AND HE HAS NOT GONE INTO THE MERIT OF THE ISSUES AS TO WHETHER THE ASSESSEE WAS LIABLE TO DEDUCT TAX ON PAYMENTS MADE BY IT, THOUGH THE ASSESSEE RAISED THE GROUNDS. THE TRIBUNAL CONS IDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE HELD THA T THE ORDER PASSED BY THE AO FOR A.Y. 2001-02 IS BARRED BY LIMI TATION. FURTHER, GIVING A FINDING THAT THE ORDER PASSED FOR A.YS. 2002-03 AND 2003-04 IS NOT BARRED BY LIMITATION AND THE APP EALS FILED BY THE REVENUE FOR THESE TWO ASSESSMENT YEARS WERE ALL OWED. NOW THE CONTENTION OF THE AR IS THAT AFTER UPHOLDING TH E ORDER OF THE AO THAT THE ORDER PASSED BY THE AO IS WITHIN THE TIME LIMIT AND THEREAFTER THE TRIBUNAL OUGHT TO HAVE REMITTED THE ISSUES TO THE FILE OF THE CIT(A) SO AS TO DECIDE THE ISSUE ON MERIT AS THE ASSESSEE RAISED THE GROUND BEFORE THE CIT(A) WITH REGARD TO VALIDITY OF DEDUCTION OF TDS WITH REFERENCE TO PAYMENTS TO NEWS PAPER AGENCIES, BAND WIDTH CHARGES, TRANSPONDERS RENT, I NTERNET CHARGES, SOFTWARE EXPENSES AND DATA CIRCUIT RENTALS . AS THE CIT(A) CANCELLED THE ORDER PASSED U/S. 201(1) AND 201(1A) ITSELF AND HE MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 10 HAS NOT GONE INTO THE ISSUE WHETHER THE ASSESSEE IS REQUIRED TO DEDUCT TDS U/S. 194C OR 194J OF THE ACT, AS APPLICA BLE. 11. WE FIND FORCE IN THE ARGUMENT OF THE ASSESSEE'S COU NSEL TO THIS EXTENT. AS THE TRIBUNAL OBSERVED THAT THE ORD ER PASSED FOR THE A.YS. 2002-03 AND 2003-04 IS WITHIN THE TIME LIMIT, IT IS INCUMBENT UPON THE TRIBUNAL TO REMIT THE ISSUE BACK TO THE CIT(A) TO DECIDED THE SAME ON MERIT WITH REFERENCE TO THE ISSUE OF TDS DEDUCTION. AS THE TRIBUNAL FAILED TO DO SO, IN OUR OPINION, IT IS FAIR AT THIS STAGE TO CORRECT THE ERROR COMMITTED BY THE TRIBUNAL AND REMIT THE ISSUE BACK TO THE FILE OF THE CIT(A) TO D ECIDE THE ISSUE RAISED BY THE ASSESSEE. OUR VIEW IS SUPPORTED BY T HE ORDER IN THE CASE OF SHAHID ATIQ VS. ITO (97 ITD 22) (DEL) WHERE IN HELD AS FOLLOWS: '9. ON GOING THROUGH THE MISCELLANEOUS APPLICATION IT IS FOUND THAT THE ASSESSEE IS SEEKING RECTIFICATION IN THE O RDER OF THE TRIBUNAL BY POINTING OUT MISTAKES OF LAW AS WELL AS MISTAKES OF FACTS. THE ALLEGED MISTAKES HAVE BEEN POINTED IN PA RAS 1 TO 6 REFERRED TO ABOVE. ON EXAMINATION OF THE ORDER OF T HE TRIBUNAL DATED 12-12-2003, IT IS FOUND THAT THE FACTS RELATI NG TO THE ISSUE INVOLVED IN THE APPEAL OF THE REVENUE AS WELL AS TH E CASE LAW ON WHICH RELIANCE HAS BEEN PLACED ON BEHALF OF THE PAR TIES, HAVE BEEN DULY CONSIDERED AND HENCE NO APPARENT MISTAKE IN RE LATION TO FACT AND LAW IS FOUND IN THE ORDER OF THE ITAT. IT MAY B E POINTED OUT THAT AFTER NARRATING THE RELEVANT FACTS, IN PARAS 1 TO 6 OF THE ORDER OF TRIBUNAL DATED 12-12-2003, THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE ASSESSEE HAVE BEEN CONSIDER ED AND THE CASE LAW ON WHICH RELIANCE WAS PLACED BY HIM AT THE TIME OF HEARING, HAVE BEEN DISCUSSED IN DETAIL IN PARAS 10 TO 21 OF THE ORDER. HENCE THE ALLEGATION OF THE ASSESSEE THAT TH E TRIBUNAL HAS OMITTED TO DEAL WITH CERTAIN JUDICIAL PRONOUNCEMENT S AND THAT THERE ARE MISTAKES OF FACTS OR OF LAW IS NOT SUBSTA NTIATED. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY MATERIAL EVIDENCE WHICH HAS BEEN IGNORED OR ANY OTH ER OMISSION ON THE PART OF ITAT WHILE DECIDING THE ISSUE RELATI NG TO THE VALIDITY MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 11 OF THE ASSESSMENT ORDER. THUS, BY MAKING AVERMENTS IN PARAS 1 TO 6 OF THE MISCELLANEOUS APPLICATION, THE ASSESSEE, I N FACT, IS SEEKING A REVIEW OF THE FINDINGS RECORDED BY THE TRIBUNAL I N RELATION TO VALIDITY OF THE ASSESSMENT ORDER. IF THE PRAYER OF THE ASSESSEE IS CONSIDERED AND ALLOWED THEN IT WILL AMOUNT TO RECAL LING OF THE ORDER OF THE TRIBUNAL AND REVIEWING THE SAME. THE A SSESSEE, THEREFORE IS REQUIRING THE TRIBUNAL TO RECALL ITS O RDER, WHICH COURSE IS NOT OPEN TO US WHILE EXERCISING JURISDICT ION UNDER SECTION 254(2). IT IS NOW WELL-SETTLED LEGAL POSITION THAT THE TRIBUNAL DOES NOT HAVE THE POWER TO RECALL ITS ORDER. THE POSITIO N IN THIS REGARD HAS BEEN CLARIFIED BY THE HON'BLE DELHI HIGH COURT- IN THE CASES OF MS. DEEKSHA SURI V. ITAT (1998) 232 ITR 3951; KARAN & CO. V. ITAT (2002) 253 ITR 131 (DELHI); AND CIT V. VICHTRA CONSTRUCTION (P) LTD. (2004) 269 ITR 371 (DEL). 12. IN VIEW OF THE RATIO OF THE ABOVE DECISIONS, TH E PRAYER MADE BY THE APPLICANT ON THE BASIS OF AVERMENTS MADE IN PAR AS 1 TO 6 OF MISCELLANEOUS APPLICATION CANNOT BE ALLOWED. 20. ON THE BASIS OF THE OBSERVATIONS MADE IN THE AF ORESAID DECISION, IT MAY BE CONCLUDED THAT THE POWERS OF TH E TRIBUNAL ARE CO-EXTENSIVE WITH THE POWERS OF THE ASSESSING OFFIC ER AND THAT OF THE FIRST APPELLATE AUTHORITY AND ARE, IN FACT, WID ER POWERS THAN THOSE AUTHORITIES, SUBJECT TO THE LIMITATION THAT T HE TRIBUNAL DOES NOT HAVE THE POWER TO ENHANCE THE ASSESSMENT WHICH POWER HAS BEEN SPECIFICALLY CONFERRED UPON THE COMMISSIONER ( APPEALS) UNDER SECTION 251(1)(A) OF THE INCOME TAX ACT AND W HICH POWER HAS BEEN SPECIFICALLY DENIED TO ITAT UNDER PROVISO TO SECTION 254, WHICH IS AS UNDER: 'PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO T HE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD.' 20.1 THUS, AS THE LIMITATION ON THE JURISDICTION OF THE ITAT HAVING BEEN SPECIFICALLY INCORPORATED UNDER A STATUTORY PR OVISION, NO FURTHER LIMITATION CAN BE IMPLIED OR IMPOSED IN THE EXERCISE OF APPELLATE JURISDICTION OF THE TRIBUNAL FOR ADJUDICA TING THE SUBJECT- MATTER IN APPEAL BEFORE IT. 22. IN VIEW OF THE ABOVE DECISION, THE DOCTRINE OF INCIDENTAL OR IMPLIED POWER HAS BEEN RECOGNIZED FOR THE EXERCISE OF POWERS BY THE APPELLATE TRIBUNAL. ON THE SAME LOGIC IT CAN BE SAID THAT THE INCOME TAX APPELLATE TRIBUNALS WHICH HAS WIDE POWER S IN RESPECT OF THE SUBJECT-MATTER OF AN APPEAL BEFORE IT, CAN D ECIDE ANY MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 12 QUESTION WHICH IS MATERIAL TO THE SUBJECT MATTER EV EN THOUGH IT WAS NOT RAISED. SUCH PROPOSITION WAS ALSO LAID DOWN IN THE CASE OF CIT V. MAHALAXMI TEXTILE MILLS LTD. (1967) 66 ITR 710 ( SC). 23. IN THE CASE OF POKHRAJ HIRACHAND V. CIT(1963) 4 9 ITR 293 (BOM), IT WAS HELD THAT THE TRIBUNAL IN DECIDING TH E APPEAL, SHALL NOT BE CONFINED TO THE GROUNDS SET FORTH IN THE MEM O OF APPEAL OR TAKEN BY LEAVE OF TRIBUNAL IN RULE 11 OF ITAT RULES . 23.1 IN THE CASE OF CIT V. EDWARD KELVENTER (SUCCES SORS) (P) LTD. (1980) 123 ITR 200 (DEL), IT WAS HELD THAT THE SUBJECT-MATTER OF AN APPEAL SHOULD BE UNDERSTOOD NOT IN A NARROW A ND UNREALISTIC MANNER BUT SHOULD BE SO COMPREHENDED AS TO ENCOMPAS S THE ENTIRE CONTROVERSY BETWEEN THE PARTIES WHICH IS SOU GHT TO BE GOT ADJUDICATED UPON BY THE TRIBUNAL. 23.2 IN VIEW OF THE ABOVE AUTHORITIES, THE WORD 'TH EREON' IS TO BE TAKEN SO AS TO REFER TO THE SUBJECT-MATTER OF THE A PPEAL AND AS HELD IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. V. CI T (1993) 199 ITR 351 (BOM) (FB), THE SUBJECT-MATTER OF APPEAL IS THE ENTIRE TAX PROCEEDINGS OF THE ASSESSEE WHICH IS BEFORE THE TRI BUNAL FOR CONSIDERATION AND THIS WILL COVER THE PROCEEDINGS B EFORE THE ASSESSING OFFICER, BEFORE THE FIRST APPELLATE AUTHO RITY AS WELL AS BEFORE THE TRIBUNAL, INCLUDING THE GROUNDS RAISED B EFORE THE TRIBUNAL, ANY ADDITIONAL GROUNDS WHICH MAY BE ALLOW ED TO BE RAISED BEFORE THE TRIBUNAL AS ALSO CROSS-OBJECTIONS , IF ANY, BEFORE THE TRIBUNAL. IN VIEW OF THE SAID DECISION IT IS CL EAR THAT THE VIEW THAT TRIBUNAL IS CONFINED ONLY TO ISSUES ARISING OU T OF THE APPEAL BEFORE THE FIRST APPELLATE AUTHORITY IS A NARROW VI EW. 23.3 THE DECISION OF THE FULL BENCH OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF AHMEDABAD ELECTRICITY CO. LTD. (SUPRA), HAS BEEN FOLLOWED AND APPLIED IN THE CASE OF NATIONAL T HERMAL POWER CO. LTD. V. CIT (1998) 229 ITR 383 (SC). 23.4 THE HON'BLE SUPREME COURT IN THE CASE OF NATIO NAL THERMAL POWER CO. LTD. V. CIT (1998) 229 ITR 383 (SC), HELD THAT THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTI ES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THE REON AS IT THINKS FIT. THE HON'BLE SUPREME COURT HAS HELD AS U NDER: 'UNDER SECTION 254 OF THE INCOME TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. THE POWER OF THE TRIBUNAL IN DEALING WITH APPE ALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE THE TAXING AUTHORITIE S IS TO ASSESS CORRECTLY THE TAX LIABILITY OF AN ASSESSEE IN ACCOR DANCE WITH LAW. IF, MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 13 FOR EXAMPLE, AS A RESULT OF A JUDICIAL DECISION GIV EN WHILE THE APPEAL IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON- TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM . THERE IS NO REASON TO RESTRICT THE POWER OF THE TRIBUNAL UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE COMMISSIONER (APPEALS). BOTH THE ASSESSEE AS WELL A S THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL/ CROSS-OB JECTIONS BEFORE THE TRIBUNAL. THE TRIBUNAL SHOULD NOT BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS, ALTHOUGH NOT RAISED EARLIER. THE VIEW THAT THE TRIB UNAL IS CONFINED ONLY TO ISSUES ARISING OUT OF THE APPEAL BEFORE THE COMMISSIONER (APPEALS) IS TOO NARROW A VIEW TO TAKE OF THE POWER S OF THE TRIBUNAL.' 23.5 IN VIEW OF THE OBSERVATION OF THE HON'BLE SUPR EME COURT, THE TRIBUNAL SHOULD DECIDE RELEVANT ISSUES IRRESPECTIVE OF THE FACT WHETHER SPECIFIC GROUND HAS BEEN TAKEN OR NOT. 23.8 IN VIEW OF THE PROPOSITIONS LAID DOWN BY THE V ARIOUS HON'BLE COURTS, AS REFERRED TO ABOVE, IT IS THE DUTY OF THE TRIBUNAL TO CONSIDER THE SUBJECT-MATTER OF THE APPEAL AND PASS 'SUCH ORDERS' AS ARE REQUIRED TO ADJUDICATE THE SUBJECT-MATTERS BEFO RE IT. IF FOR ADJUDICATING VARIOUS ASPECTS OF THE SUBJECT-MATTER OR MATTERS INCIDENTAL THERETO, AN ORDER OR DIRECTION IS REQUIR ED TO BE ISSUED, THEN, 'SUCH ORDER' OR 'DIRECTIONS' ARE LEGALLY JUST IFIED IN VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 254(L) OF THE IN COME TAX ACT. 24. IT MAY ALSO BE POINTED OUT THAT RULES 11, 27 AN D 28 OF THE APPELLATE TRIBUNAL RULES ALSO REGULATE POWER AND PR OCEDURE TO BE EXERCISED BY THE TRIBUNAL. RULE 28 OF THE APPELLATE TRIBUNAL RULES ALSO JUSTIFIES DIRECTIONS FOR REMANDING THE MATTER, IF THE SAME IS CALLED FOR. THUS, WHERE PARTICULAR ISSUE HAS BEEN O MITTED TO BE CONSIDERED OR HAS NOT BEEN ADJUDICATED PROPERLY OR WHERE PERVERSE FINDINGS HAVE BEEN RECORDED IN TOTAL DISRE GARD OF THE MATERIAL ON RECORD, THE TRIBUNAL IS COMPETENT ENOUG H TO SET ASIDE THE ORDER OF THE LOWER APPELLATE AUTHORITY TO THAT EXTENT, ALTHOUGH NO SPECIFIC GROUND IS TAKEN FOR THAT PURPOSE BY THE CONCERNED PARTY. THUS, IN A GIVEN SITUATION, FIRSTLY, THERE I S AN OBLIGATION ON THE PART OF THE TRIBUNAL TO CONSIDER THE SUBJECT-MA TTER OF APPEAL AND SECONDLY TO ISSUE EFFECTIVE DIRECTIONS FOR ADJU DICATING THE SUBJECT-MATTER OF APPEAL, WHICH, AS OBSERVED EARLIE R, INCLUDES THE ENTIRE PROCESS OF ASSESSMENT AND WHICH HAS BEEN HEL D TO BE AN INTEGRATED PROCESS. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 14 25. NOW THE NEXT ISSUE IS AS TO WHETHER A MISTAKE C AN BE POINTED OUT ON THE PART OF ITAT EVEN WHEN THE ASSESSEE DID NOT SEEK ANY RELIEF FROM THE TRIBUNAL. AS OBSERVED EARLIER, IN O RDER TO EFFECTIVELY ADJUDICATING THE ISSUE AND THE SUBJECT- MATTER, SUCH DUTY IS CAST UPON THE TRIBUNAL. TO CONCLUDE, DIRECTION S HOULD BE ISSUED TO THE COMMISSIONER (APPEALS) FOR DECIDING SUCH ISS UES, AS SUCH DIRECTIONS ARE ESSENTIALLY INCIDENTAL TO THE SUBJEC T-MATTER AND MISTAKE ON THE PART OF THE TRIBUNAL IN NOT RESTORIN G THE MATTER TO THE COMMISSIONER (APPEALS) CAN BE RECTIFIED BY AMEN DING ITS EARLIER ORDER. THE POWER TO AMEND BEING DIFFERENT T O THE POWER OF REVIEW, CAN DEFINITELY BE EXERCISED IN SUCH A CASE. 26.3 AS OBSERVED BY THE HON'BLE SUPREME COURT IN TH E CASE OF NATIONAL THERMAL POWER CO. LTD. (SUPRA), THE POWER OF THE TRIBUNAL IN DEALING WITH THE APPEALS IS VERY WIDE A ND WHILE EXERCISING THE STATUTORY AUTHORITY AND STATUTORY DU TY, IT HAS GOT ALL POWERS WHICH ARE REASONABLY NECESSARY FOR THE ACCOM PLISHMENT OF THE OBJECT INTENDED TO BE SECURED. HENCE, WHEREAS T HE TRIBUNAL HAS NO POWER TO RECALL AND REVIEW ITS ORDERS, IN VI EW OF THE DECISIONS OF JURISDICTIONAL HIGH COURT IN THE CASES OF VICHTRA CONSTRUCTION (P) LTD. (SUPRA) AND MAYUR RECREATIONA L & DEVELOPMENT LTD. (SUPRA), IT HAS GOT POWER TO AMEND THE ORDER IF THE PROPER ADJUDICATION OF THE SUBJECT-MATTER SO WA RRANTS. THUS, IN A GIVEN SITUATION, LIKE THE ONE BEFORE US, THE ORDE R MAY NOT BE RECALLED BUT AT THE SAME TIME IT MAY REQUIRE AMENDM ENT BY MAKING ADDITIONS. SUCH AN AMENDMENT OR ADDITION BEING DIFF ERENT FROM REVIEW OF THE ORDER, IS VERY MUCH PERMISSIBLE WITHI N THE SCOPE OF POWERS UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961. 26.4 THUS, ON PROPER EXAMINATION OF SECTION 254(2) OF THE INCOME TAX ACT, REPRODUCED IN PARA 18 OF THIS ORDER, IT IS CLEAR THAT THE TRIBUNAL IS UNDER LEGAL OBLIGATION TO AMEND ITS ORD ER, PASSED BY IT UNDER SUB-SECTION (1) OF SECTION 254, IF ANY MISTAK E POINTED OUT OR IS FOUND APPARENT FROM THE RECORD. IF THE TRIBUNAL HAS FAILED TO ISSUE DIRECTIONS OR FAILED TO PASS SUCH ORDERS, AS ARE REQUIRED TO BE PASSED UNDER SECTION 254(L), THEN IT SHALL AMOUNT T O A MISTAKE APPARENT FROM RECORD AND FOR RECTIFYING SUCH MISTAK ES THE TRIBUNAL 'SHALL MAKE SUCH AMENDMENT' IN ITS ORDER A S ARE NECESSARY FOR CORRECTING SUCH MISTAKE. 26.5 THUS, IN VIEW OF THE LANGUAGE ADOPTED IN SUB-C LAUSE (2), AS REFERRED TO ABOVE, IT IS MANDATORY OBLIGATION ON TH E PART OF THE TRIBUNAL TO AMEND ITS ORDER IF THE MISTAKE OR ERROR SO REQUIRES. 29. IN THE INSTANT CASE IF THE CONTENTION OF THE LE ARNED DEPARTMENTAL REPRESENTATIVE THAT AS THE ASSESSEE HA S NOT FILED CROSS OBJECTION, HE CANNOT INSIST ON ADJUDICATION O F GROUNDS ON MERITS BY THE LEARNED COMMISSIONER (APPEALS), IS AC CEPTED, THEN MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 15 GREAT PREJUDICE SHALL BE CAUSED TO THE ASSESSEE AND THERE SHALL BE MISCARRIAGE OF JUSTICE. WHILE DECIDING THE APPEAL, THE TRIBUNAL HAS TO UNDERTAKE A MEANINGFUL AND EFFECTIVE EXERCISE OF ITS JURISDICTION TO ENSURE AND PROVIDE SUBSTANTIAL JUSTICE IN RELATI ON TO THE SUBJECT- MATTER UNDER ITS CONSIDERATION AND FOR DOING SO, IT HAS THE POWER TO 'PASS SUCH ORDERS THEREON AS IT THINKS FIT', IN VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 254 OF THE INCOM E TAX ACT. ON THE FACTS AND THE PECULIAR CIRCUMSTANCES RELATING T O THIS CASE, THEREFORE, THE TRIBUNAL WHILE REVERSING THE ORDER O F LEARNED COMMISSIONER (APPEALS) ON THE POINT OF VALIDITY OF NOTICE UNDER SECTION 148, SHOULD HAVE ALSO DIRECTED THE LEARNED COMMISSIONER (APPEALS) TO DECIDE THE OTHER GROUNDS ON MERITS. TH E OMISSION TO DO SO I.E., NOT RESTORING THE MATTER TO THE FILE OF COMMISSIONER (APPEALS) AND NOT ISSUING DIRECTION FOR ADJUDICATIN G THE GROUNDS ON MERIT, THEREFORE, AMOUNTED TO BE A MISTAKE ON TH E PART OF THE TRIBUNAL. 30. IN VIEW OF THE AFORESAID OBLIGATION AND DUTY OF THE TRIBUNAL, WE HAVE TO CONSIDER THE REMEDIES SOUGHT IN TWO PART S OF THIS MISCELLANEOUS APPLICATION. ON PART A, IN VIEW OF TH E DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASES OF VICHTR A CONSTRUCTION (P) LTD. (SUPRA); AND MAYUR RECREATIONAL & DEVELOPM ENT LTD. (SUPRA), WE ARE OF THE CONSIDERED OPINION THAT THE TRIBUNAL HAS NO POWER TO, REHEAR, RECONSIDER, RECALL AND REVIEW ITS ORDER UNDER SECTION 254(L) OF THE INCOME TAX ACT. HOWEVER, SO F AR AS PART 'B' IS CONCERNED, AFTER CONSIDERING THE SCOPE UNDER SECTIO N 254(2), RELATING TO POWER AVAILABLE TO THE ITAT FOR RECTIFY ING ITS MISTAKES, WE HAVE TO HOLD THAT THE TRIBUNAL HAS NOT ONLY POWE R BUT LEGAL OBLIGATION TO AMEND ITS ORDER, SO AS TO RECTIFY AND CURE THE MISTAKE FOUND ON ITS PART IN NOT RESTORING THE MATTER TO LE ARNED COMMISSIONER (APPEALS). 32. THUS, WHILE MAINTAINING OUR ORDER ON THE LEGAL ISSUE, AND WITHOUT RECALLING OR REVIEWING THE SAME, WE CONSIDE R IT NECESSARY TO AMEND THE ORDER OF THE TRIBUNAL DATED 12-12-2003 FOR RECTIFYING THE MISTAKE ON THE PART OF ITAT IN NOT RESTORING TH E MATTER TO LEARNED COMMISSIONER (APPEALS) FOR DECIDING THE GRO UNDS ON MERITS. 12. IN VIEW OF THE ABOVE DISCUSSION, WE ARE INCLINED TO DIRECT THE CIT(A) TO DECIDE THE APPEALS RELATING TO A.YS. 2002 -03 AND 2003-04 ON MERIT OF THE ISSUE RAISED BY THE ASSESSEE IN GRO UND NOS. 1(A) TO 6(A) AS A MAIN GROUND BEFORE HIM SINCE THE CIT(A) D ECIDED ONLY ADDITIONAL LEGAL GROUND BEFORE HIM. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 16 13. FURTHER RELATING TO THE MISTAKE IN TRIBUNAL ORDER I N PARA 15, THE SAME IS TO BE READ AS FOLLOWS: '15. IN VIEW OF THE ORDER OF THE SPECIAL BENCH OF I TAT, MUMBAI IN CASE OF MAHINDRA AND MAHINDRA (SUPRA), WE ARE INCLINED TO HOLD THAT THE ORDER PASSED U/S 201(1) AND 201(1A) FOR THE ASSESSMENT YEARS 2002-03 AND 2003-04 IS NOT BARRED BY LIMITATION AND THE SAM E IS VALID, THEREFORE, TO THAT EXTENT THE CIT(A) IS N OT CORRECT IN ANNULLING THE ORDER PASSED U/S 201(1) AN D 201(1A) OF THE ACT FOR THE AYS 2002-03 AND 2003-04. FURTHER, IT IS NOTICED THAT THE HONBLE DELHI HIGH COURT IN THE CASE OF DELHI DEVELOPMENT AUTHORITY VS . ITO [2008] 230 ITR 9 HAS HELD THAT THE ORDER UNDER SECTION 201(1) IS AN ORDER OF ASSESSMENT AND THE SA ME JUDGMENT STANDS APPROVED BY THE HON'BLE SUPREME COURT IN THE CASE OF ITO V. DELHI DEVELOPMENT AUTHORITY [2001] 252 ITR 772 AND THE SAME WAS FOLLOWED BY THE SPECIAL BENCH MUMBAI IN THE CASE OF MAHINDRA & MAHINDRA VS. DCIT [122 TTJ (MUM) (SB) 577] (PARAS 17.8 TO 17.10) BY HOLDING AS UNDER: ORDER UNDER SECTION 201(1) IS TO BE TREATED AS AN ORDER OF ASSESSMENT AS PER SECTION 2(8) ASSESSMENT INCLUDES REASSESSMENT', THEN IT BECOMES MANIFEST THAT THE TI ME-LIMIT FOR INITIATING AND COMPLETING THE PROCEEDINGS UNDER SECTION 201(1) HAS TO BE AT PAR WITH THE TIME-LIMIT AVAILAB LE FOR INITIATING AND COMPLETING THE REASSESSMENT, MORE SO WHEN THE SCOPE OF SECTION 147 ALSO ROPES IN THE CASES OF ASSESSMENT APART FROM REASSESSMENT. 14. FURTHER WE ALSO MENTION HEREIN THAT THE MA FILED BY THE ASSESSEE FOR A.Y. 2001-02 DOES NOT REQUIRE ANY ADJU DICATION AS EARLIER ORDER OF THE AO WAS CANCELLED. MA NOS. 4-6/HYD/2014 M/S. USHODAYA ENTERPRISES LTD. ======================== 17 15. CONSEQUENTLY, RESULT OF ITA NO. 1516/HYD/2008, 314/ HYD/ 2012 AND 315/HYD/2012 ARE TO BE READ AS FOLLOWS: 'IN THE RESULT, ITA NO. 1516/HYD/2008 IS DISMISSED, AND ITA NOS. 314 AND 315/HYD/2012 ARE PARTLY ALLOWED.' 16. IN THE RESULT, MAS FILED BY THE ASSESSEE FOR A.Y. 2 002-03 AND 2003-04 ARE PARTLY ALLOWED AND MA FILED FOR A.Y. 20 01-02 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH, 2014. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 26 TH MARCH, 2014 TPRAO COPY FORWARDED TO: 1. M/S. USHODAYA ENTERPRISES LTD., 6 - 3 - 570, EENADU COMPLEX, SOMAJIGUDA, HYDERABAD. 2. THE ACIT, CIRCLE - 15(2) (TDS), ROOM NO. 444, 'D' BLOCK, 4 TH FLOOR, IT TOWERS, AC GUARDS, HYDERABAD. 3. THE CIT(A) - II, HYDERABAD. 4. THE CIT (TDS), HYDERABAD. 5 . THE DR ' B ' BENCH, ITAT, HYDERABAD .