R.L. Steel Ltd., New Delhi V. DCIT, New Delhi

MA 458/DEL/2018

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R.L. Steel & Energy Ltd. filed a miscellaneous application seeking recall of the Tribunal's earlier order, claiming that an installation certificate evidencing depreciation on electric installations and buildings part of a reheating furnace was overlooked. The Tribunal, referencing the Supreme Court's decision in CIT Vs. Reliance Telecom Ltd., held that it could not revisit the merits of the case under section 254(2) of the Income Tax Act, which only allows for correction of mistakes apparent from the record. The Tribunal found no such mistake in the original order and thus dismissed the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113190 (ITAT-DELHI)
• Duration Of Justice: 5 year(s) 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 05-01-2023
• Assessment Year: 2006-2007
• Appeal Filed On: 08-07-2018
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd. 440 ITR 1
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Set aside
• Section: 254(2)

Judgement Text

I.T.A. No. 458/Del/2018 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “F” NEW DELHI BEFORE SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER MA No. 458/Del/2018 (In I.T.A No.3523/Del/2010) &(In CO No.85/Del/2016) /Assessment Year:2006-07 R.L. Steel & Energy Ltd. (earlier R.L. Steel Ltd.) C-1/A, Opp. To Arya Samaj Mandir, Nizamuddin East, Mathura Road, New Delhi. ब म Vs. DCIT Circle15(1), New Delhi. PAN No. AAACR5809B Appellant /Respondent Assessee by Shri Gurjeet Singh, CA Revenue by Shri S.L. Anuragi, Sr. DR स ु नवाईक तारीख/ Date of hearing: 06.01.2023 उ ोषणाक तारीख/Pronouncement on 12.09.2023 आदेश /O R D E R PER C.N. PRASAD, J.M. Through this miscellaneous application the assessee requests for recall of the order of the Tribunal in Cross Objection No.85/Del/2016 arising out of ITA No.3523/Del/2010 dated 04.04.2018 on the ground that the Tribunal omitted to consider the I.T.A. No. 458/Del/2018 2 evidence furnished by the assessee in the form of Installation certificate issued by the Assistant Commissioner of Central Excise Customs regarding allowability of depreciation on electric installation and furnished building which are part of reheating furnace. 2. Ld. Counsel submits that even though the evidence in the form of installation certificate was furnished before the Tribunal the same was omitted to consider, therefore, is a mistake apparent on record. 3. On the other hand, the Ld. DR submits that there is no mistake apparent on record placing reliance on the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. 440 ITR 1. Ld. DR submits that even if the order passed by the Tribunal is erroneous, the Tribunal did not have power to review its order. 4. Heard rival submissions, perused the order of the Tribunal and the paper book furnished by the assessee. The Tribunal while disposing of the cross objection of the assessee it has been observed that the letter furnished by M/s K.N. Engineering Works who is the supplier of reheating furnace denied before the Assessing Officer of I.T.A. No. 458/Del/2018 3 any involvement. We also noticed that the Tribunal observed that there was no proof furnished by the assessee at any stage evidencing commercial production. We also observed that though there is no reference to the document i.e. installation certificate issued by Assistant Commissioner of Central Excise and Customs, the Tribunal on appreciation of other fats on record decided the issue against the assessee. 5. The Hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd. (supra) held as under: - “3.2 Having gone through both the orders passed by the Income-tax Appellate Tribunal, we are of the opinion that the order passed by the Income-tax Appellate Tribunal dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under section 254(2) of the Act. While allowing the application under section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the Income-tax Appellate Tribunal has re- heard the entire appeal on merits as if the Income Tax Appellate Tribunal was deciding the appeal against the order passed by the Commissioner of Income Tax. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under section 254(2) of the Act are akin to Order XLVII, Rule 1 of the Code of Civil Procedure. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. I.T.A. No. 458/Del/2018 4 4. In the present case, a detailed order was passed by the Income Tax Appellate Tribunal when it passed an order on 06.09.2013, by which the Income tax Appellate Tribunal held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the Income Tax Appellate Tribunal was erroneous, either on the facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the Income Tax Appellate Tribunal dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the Income Tax Appellate Tribunal recalling its earlier order dated 06.09.2013 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. Therefore, the order passed by the Income Tax Appellate Tribunal dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but Income Tax Appellate Tribunal had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before Income Tax Appellate Tribunal. I.T.A. No. 458/Del/2018 5 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the Income Tax Appellate Tribunal and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the Income Tax Appellate Tribunal to pass the order de hors Section 254(2) of the Act. As observed hereinabove, 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. Even the observations that the merits might have been decided erroneously and the Income Tax Appellate Tribunal had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the Income Tax Appellate Tribunal was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case.” As could be seen from the above, the Hon’ble Supreme Court has categorically held that even if the order passed by the Tribunal was erroneous on merits in that case the remedy available to the assessee was to prefer an appeal before the High Court. 6. In view of the above, we hold that there is no mistake apparent on record in the order of the Tribunal in Cross Objection No.85/Del/2016 arising out of ITA No.3523/Del/2010 dated 04.04.2018. Thus, we reject the miscellaneous application filed by the assessee. I.T.A. No. 458/Del/2018 6 7. In the result, miscellaneous application is dismissed. Order pronounced in the open court on 12.09.2023 Sd/- Sd/- (NARENDRA KUMAR BILLAIYA) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 12.09.2023 *Kavita Arora, Sr. P.S. Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order Assistant Registrar, ITAT: Delhi Benches-Delhi