M/s Infosys BPM Limited, Bangalore V. Deputy Commissioner of Income Tax Circle-3(1)(1), Bangalore

MA 49/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0641 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 19-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PADAMCHAND KHINCHA
• Keywords: TDS
• Section: 254(2)

Judgement Text

MP NO.49/BANG/2021 M/S. INFOSYS BPM LTD., BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER M.P. NO.49/BANG/2021 (ARISING OUT OF ITA NO.491/BANG/2018 ASSESSMENT YEAR : 2011-12 INFOSYS BPM LTD. ELECTRONIC CITY HOSUR ROAD BENGALURU PAN NO : AACCP4478N VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-3(1)(1) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI PADAM CHAND KHINCHA, A.R. RESPONDENT BY : SHRI PRADEEP KUMAR, D.R. DATE OF HEARING : 16.07.2021 DATE OF PRONOUNCEMENT : 16.07.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL SEEKING RECALL O F ORDER DATED 11.12.2020 PASSED BY THE TRIBUNAL IN ITA NUMBER CIT ED ABOVE. 2. THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE READS AS UNDER: 5.5 IN THE ORDER DATED 11.12.2020, THE HONBLE ITA T HAS NOT ADJUDICATED THE GROUND ON ALLOWANCE OF TDS CREDIT TO THE EXTENT OF RS.29,72,729. 5.6 HENCE, IT IS HUMBLY SUBMITTED THAT THE NON-ADJU DICATION OF THE GROUND RAISED BY THE PETITIONER, IS A MISTAKE APPARENT FROM RECOR D UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961. MP NO.49/BANG/2021 M/S. INFOSYS BPM LTD., BANGALORE PAGE 2 OF 3 5.7. IN CIT V K M SUGAR MILLS (P) LTD (2005) 275 IT R 247 (ALL) THE HIGH COURT HELD THAT IF A GROUND OF APPEAL IS NOT ADJUDICATED BY TH E TRIBUNAL, THE SAME CONSTITUTES A MISTAKE, WHICH CAN BE RECTIFIED BY HEARING THE MA TTER UNDER SECTION 254. 5.8. THE ITAT, HYDERABAD BENCH IN BHARATH BIOTECH I NTERNATIONAL LTD. V DCIT (2015) 57 TAXMANN.COM 117 (HYD - TRIB), HELD THAT IF THE TRIBUNAL HAS OM ITTED TO CONSIDER A GROUND OF APPEAL TAKEN BEFORE IT OR IF IT HAS FAI LED TO PASS SUCH ORDER OR TO ISSUE SUCH DIRECTIONS WHICH WERE NECESSARY FOR PROPER ADJ UDICATION OF SUBJECT-MATTER OF APPEAL, IT IS A MISTAKE APPARENT FROM RECORD. SUCH MISTAKE CAN BE RECTIFIED BY AMENDING THE ORDER IN THE COURSE OF DECIDING THE MI SCELLANEOUS APPLICATION. 5.9. THE MADRAS HIGH COURT IN CIT V RAMDAS PHARMACY [1970] 77 ITR 276 (MAD) HELD AS UNDER. THE TRIBUNAL, BEING THE FINAL FACT-FINDING AUTHORIT Y, HAS TO CONSIDER AND DECIDE ALL THE ISSUES THAT ARE BROUGHT BEFORE IT. IT CANNO T DECIDE ONLY ONE ISSUE ARISING OUT OF THE MANY ISSUES AND DECLINE TO GO INTO THE O THER ISSUES RAISED BEFORE IT ON THE GROUND THAT THE FURTHER ISSUES WILL NOT ARIS E IN VIEW OF THELINDING ON THE ISSUE DECIDED BY IT. IF THE TRIBUNAL DECLINES TO CO NSIDER AND DECIDE THE OTHER ISSUES IT WILL 04 PROTRACT AND DELAY THE PROCEEDING S, FOR THE ASSESSEE HA'S TO GET THE DECISION OF THE TRIBUNAL ON THE INITIAL POINT S ET ASIDE BY APPROACHING THE HIGH COURT AND THEREAFTER AGAIN GO BEFORE THE TRIBU NALFBR A DECISION ON THE OTHER ISSUES LEFT UNDECIDED BY IT EARLIER. THIS WIL L AMOUNT TO MULTIPLICATION OF THE PROCEEDINGS UNDER THE ACT. IT HAS BEEN MORE THA N ONCE EXPRESSED BY THIS COURT THAT THE SUBORDINATE COURTS AND THE TRIBUNALS SHOULD AVOID DISPOSING OF THE MATTERS ON PRELIMINARY ISSUES ALONE, WITHOUT DE CIDING ALL THE ISSUES RAISED BEFORE THEM SO THAT THE HIGHER COURTS WILL HAVE THE BENEFIT OF THEIR DECISION ON OTHER POINTS ALSO IF THE NECESSITY ARISES. 5.10 IN VIEW OF THE ABOVE, THE PETITIONER HUMBLY SU BMITS THAT NON-ADJUDICATION OF THE GROUND AS TO ALLOWANCE OF TDS CREDIT OF RS.29,7 2,729, CONSTITUTES MISTAKE APPARENT FROM RECORD AS PER SECTION 254(2) OF THE ACT. 3. THE LD. A.R. SUBMITTED THAT THE TRIBUNAL HAS NOT CO NSIDERED THE ISSUE OF ALLOWANCE OF TDS CREDIT OF RS.29,72,72 9 FOR ASSESSMENT YEAR 2011-12 AND THE SAME CONSTITUTES MISTAKE APPAR ENT FROM RECORD AS PER SECTION 254(2) OF THE ACT. 4. WE HEARD LD. D.R. AND PERUSED THE RECORD. AS RI GHTLY POINTED OUT BY LD. A.R., THE ISSUE REGARDING INCORRECT ALLO WANCE OF TDS CREDIT FOR ASSESSMENT YEAR 2011-12 WAS NOT ADJUDICATED AT THE TIME OF DISPOSAL OF THE APPEAL CITED (SUPRA). HENCE, THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRI BUNAL. ACCORDINGLY, ORDER DATED 11.12.2020 PASSED BY THE T RIBUNAL IS MODIFIED AS UNDER: MP NO.49/BANG/2021 M/S. INFOSYS BPM LTD., BANGALORE PAGE 3 OF 3 (I) EXISTING PARAGRAPH 28 IS RENUMBERED AS PARAGRAPH 29. (II) FOLLOWING PARAGRAPH IS INSERTED AFTER PARAGRAPH 27 . 28. THE LAST ISSUE RELATES TO CLAIM OF TDS CREDIT. IT IS THE CONTENTION OF THE ASSESSEE THAT TDS CREDIT HAS NOT BEEN CORRECTLY ALLOWED. THIS CLAIM REQUIRES VERIFICATION OF FACTS . ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF AO WITH THE DIREC TION TO VERIFY THE CLAIM OF THE ASSESSEE. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH JUL, 2021 SD/- (GEORGE GEORGE K. ) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 16 TH JUL, 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.