ACIT, Circle-8(1), Hyderabad, Hyderabad V. P. Ravinder Reddy (HUF), Hyd, Hyderabad

MA 49/Hyd/2022

AI Insights

The case involves multiple Miscellaneous Applications (M.A. Nos. 41 to 53/Hyd/2022) filed by various Hindu Undivided Families (HUFs) against the Assistant Commissioner of Income Tax, Circle-8(1), Hyderabad. The applications sought to recall a common order dated 27/08/2021, which had partly allowed appeals related to assessments under sections 143(3) read with section 147 and section 158BD of the Income Tax Act, 1961. The applicants argued that the Tribunal had not considered certain aspects of their appeals, specifically the issue of allowing deduction under section 54F. The Tribunal, however, found no mistake apparent from the record that warranted a recall of the order, emphasizing that the detailed nature of the original order precluded any recall under section 254(2).

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 133140 (ITAT-HYDERABAD)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2023
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 05-01-2023
• Assessment Year: misc
• Appeal Filed On: 23-03-2022
• Other Referred Cases: CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC)
• Laws Referred To: Income Tax Act, 1961
• Court: TRIBUNAL
• Keywords: Capital asset; Set aside
• Section: 147; 143(3); 54F; 254(2); 158BD

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. No. Block Period/ A.Y. (आिेदक / Applicant) प्रत्‍यर्थी / Respondent 41/Hyd/2022 (In ITA No.377/H/16) 1990-91 to 1999-2000 P. Ranga Reddy (HUF) Hyderabad [PAN: AAFHP4874G] Assistant Commissioner of Income Tax, Circle-8(1), Hyderabad 42/Hyd/2022 (In ITA No.378/H/16) 1999-2000 43/Hyd/2022 (In ITA No.379/H/16) 1999-2000 P.Dharma Reddy (HUF) Hyderabad [PAN: AAFHP4869P] 44/Hyd/2022 (In ITA No.380/H/16) 1990-91 to 1999-2000 45/Hyd/2022 (In ITA No.381/H/16) 1990-91 to 1999-2000 P.Srinivasa Reddy (HUF) Hyderabad [PAN: AAFHP4871D] 46/Hyd/2022 (In ITA No.382/H/16) 1999-2000 47/Hyd/2022 (In ITA No.383/H/16) 1999-2000 P.Janardhan Reddy (HUF) Hyderabad [PAN: AAFHP4868N] 48/Hyd/2022 (In ITA No.384/H/16) 1990-91 to 1999-2000 49/Hyd/2022 (In ITA No.385/H/16) 1990-91 to 1999-2000 P.Ravinder Reddy (HUF) Hyderabad [PAN: AAFHP4870C] M.A. Nos. 41 to 53/Hyd/2022 Page 2 of 8 50/Hyd/2022 (In ITA No.388/H/16) 1990-91 to 1999-2000 P.Sudhakar Reddy (HUF) Hyderabad [PAN: AAFHP4873B] Assistant Commissioner of Income Tax, Circle-8(1), Hyderabad 51/Hyd/2022 (In ITA No.389/H/16) 1999-2000 P.Narsimha Reddy (HUF) Hyderabad [PAN: AAFHP4872A] 52/Hyd/2022 (In ITA No.390/H/16) 1990-91 to 1999-2000 53/Hyd/2022 (In ITA No.391/H/16) 1999-2000 P.Sudhakar Reddy (HUF) Hyderabad [PAN: AAFHP4873B] विर्धारिती द्वधिध / Assessee by: Smt. S. Sandhya, AR िधजस्‍ि द्वधिध / Revenue by: Shri Rohit Mujumdar, DR सुििधई की तधिीख/Date of hearing: 06/01/2023 घोषणध की तधिीख/Pronouncement on: 10/01/2023 आदेश / ORDER PER K. NARASIMHA CHARY, J.M : Assessee filed these Miscellaneous Applications to recall the common order dated 27/08/2021 passed in ITA Nos. 377/Hyd/2016 and batch, on the ground that the Tribunal partly allowed all the appeals, without considering the fact that either of the two assessments, viz, the assessment under section 143(3) read with section 147 or under section 158BD of the Income Tax Act, 1961 (for short “the Act”) only can survive since the learned Assessing Officer made the addition on account of same M.A. Nos. 41 to 53/Hyd/2022 Page 3 of 8 capital gains in both the assessments, and also not decided the issue of allowing deduction under section 54F of the Act. 2. Learned AR submitted that the order passed by the Tribunal is silent in respect of these aspects now urged in these Miscellaneous Applications and, therefore, the said order has to be recalled. She further submitted that the Bench recorded that ‘no other grounds or arguments were pressed’ and it is factually incorrect. 3. Learned DR submitted that it could be seen from the record in the appeals itself that while arguing the appeals, the counsel reported that certain grounds were not pressed and the same is noted on the sheet containing the grounds of appeal. He submitted that learned Counsel, who is arguing these Miscellaneous Applications was not the counsel, who argued the appeals and also the Members now presiding over the Bench were not the Members, who heard and disposed of the appeals. He submitted that the argument of the learned AR is against the findings of the Bench recorded in the impugned order and except the statement of the learned AR that it is factually incorrect statement recorded by the Bench that no other ground or argument was pressed on the date of hearing of appeals, no other material is forthcoming in support of such an argument of the learned AR. According to him, if such an argument is accepted, it would create un-desirable results, because, as and when the Members are transferred, such a plea could be taken by any assessee through a new counsel. He further submitted that the presumption is in favour of the correctness of the findings recorded in the judicial M.A. Nos. 41 to 53/Hyd/2022 Page 4 of 8 proceedings and the party disputing such findings shall be subjected to strict scrutiny and proof. According to the learned DR, the error complained by the assessee is not a mistake apparent from record so as to be amenable for correction under section 254(2) of the Act. Learned DR 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) in support of his contentions that in respect of errors of judgment either on facts or on law, remedy is only to prefer appeal before the Hon'ble High Court. 4. We have gone through the record in the light of the submissions made on either side. It could be seen from the impugned order that apart from the grounds that were urged and decided by way of the common order, the impugned order reads that no other ground or argument was pressed before the Bench. As a matter of fact, from the scribbling found on the sheet containing the grounds of appeal, on the date of hearing, we find that it was transpired that certain grounds were not pressed during the course of argument. Further, there is a presumption in law that all the judicial acts are performed properly and regularly. There is no material whatsoever to rebut this presumption and to show that what was recorded by the Bench in the order is factually incorrect. Learned Counsel who argued these Miscellaneous Applications, was not the counsel who argued the appeals and the present constitution of the Bench was also not the same as heard and disposed of these appeals. In these circumstances, we find it difficult to accept the contention of the learned AR that a factually incorrect statement to the effect that ‘no other grounds were urged before the Bench’ was recorded in the impugned order. M.A. Nos. 41 to 53/Hyd/2022 Page 5 of 8 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). 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 M.A. Nos. 41 to 53/Hyd/2022 Page 6 of 8 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 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. The submission made by the learned AR is that either assessment u/s. 143(3) read with section 147 or assessment u/s. 158BD alone has to survive, but not both. According to us, it falls in the realm of mistake of law M.A. Nos. 41 to 53/Hyd/2022 Page 7 of 8 but not a ‘mistake apparent on record’, so as to be recalled by the Tribunal in exercise of powers under section 254(2) of the Act. 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 27/08/2021 in ITA No. 377/Hyd/2016 and batch on merits, the Tribunal has become functus officio and the prayer of the assessee to recall the same is impermissible under law. Consequently, we decline to grant the prayer of the assessee. 9. In the result, all these Miscellaneous Applications are dismissed. Order pronounced in the open court on this the 10 th day of January, 2023. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 10/01/2023 TNMM M.A. Nos. 41 to 53/Hyd/2022 Page 8 of 8 Copy forwarded to: 1.P.Ranga Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 2.P.Dharma Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 3.P.Srinivasa Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 4.P.Janardhan Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 5.P.Ravinder Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 6.P.Sudhakar Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 7.P.Narsimha Reddy (HUF), C/o.Sri S.Rama Rao, Advocate, Flat No.102, Shriya’s Elegance, 3-6-643, Street No.9, Himayat Nagar, Hyderabad. 8.The Asst.Commissioner of Income Tax, Circle-8(1), Hyderabad. 9.CIT(Appeals)-2, Hyderabad. 10.Pr.CIT-2, Hyderabad. 11.D.R. ITAT, Hyderabad. 12.Guard File. TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD