Sushee Infra & Mining Limited, Hyderabad V. Assistant Commissioner of Income Tax, Central Circle-2(2), Hyderabad

MA 5/Hyd/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3040 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Next Hearing Date: 14-03-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 21-02-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect
• Section: 13

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, VICE PRESIDENT & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER M.A. No. A.Y. Applicant Respondent 4/Hyd/2024 (Arising out of ITA No. 730/Hyd/2020) 2014-15 M/s. Sushee Infra & Mining Limited, Hyderabad [PAN: AACCS8560Q] Assistant Commissioner of Income Tax, Central Circle-2(2), Hyderabad 5/Hyd/2024 (Arising out of ITA No. 733/Hyd/2020) 2017-18 6/Hyd/2024 (Arising out of ITA No. 244/Hyd/2022) 2019-20 Deputy Commissioner of Income Tax, Central Circle-2(2), Hyderabad निर्धारिती द्वधिध / Assessee by: Shri S. Rama Rao, AR िधजस् व द्वधिध / Revenue by: Shri Shakeer Ahamed, DR स ु िवधई की तधिीख/Date of hearing: 15/03/2024 घोषणध की तधिीख/Pronouncement on: 12/04/2024 आदेश / ORDER PER K. NARASIMHA CHARY, J.M: Assessee through these Miscellaneous Applications requests the Tribunal to rectify certain errors, that were crept in the Tribunal’s order dated 27/12/2023. M.A. No. 4/Hyd/2024: 2. Learned AR referring to the contents of the Miscellaneous Application, submitted that in the appeal filed by the Revenue, the tax MA Nos. 4, 5 & 6/Hyd/2024 Page 2 of 5 effect in respect of the amount contested by the learned Assessing Officer is Rs. 49,95,362/-, which is less than Rs. 50 lakhs. Therefore, the appeal filed by the Revenue is not maintainable In view of the CBDT Circular No. 17/2019 dated 8 th August 2019. He accordingly submitted that the appeal filed by the Revenue should be dismissed. 3. Learned DR, on the other hand, could not controvert the above argument of the learned AR. 4. After hearing both the sides, we find that admittedly the tax effect in respect of the amount contested by the Revenue in this appeal is below Rs. 50 lakhs and, therefore, the appeal filed by the Revenue is not maintainable. Thus, a mistake has crept in the order of the Tribunal. We accordingly rectify the mistake and direct that paragraph No. 13 shall be read as under: “13. In the result, appeal of the assessee in ITA No. 677/Hyd/2020 is treated as allowed for statistical purposes and appeal of the Revenue in ITA No. 730/Hyd/2020 is dismissed.” M.A. No. 5/Hyd/2024: 5. Learned AR drew the attention of the Bench to the contents of the Miscellaneous Application, according to which, grounds of appeal No. 2 by the Revenue remained unadjudicated. Learned DR also fairly considered that ground No. 2 raised by the Revenue remained unadjudicated. 6. After hearing both the sides, we find that Revenue has raised ground No. 2, challenging the order of the learned CIT(A) in allowing the deduction claimed under section 80-IA(4) of the Act in respect of the profits derived from projects awarded to Joint Venture entities. Although we have decided the issue against the Revenue and in favour of assessee for the assessment years 2015-16 and 2016-17 in the consolidated order passed, however, this ground remained unadverted to. We, therefore, are of the opinion that a mistake has crept in the orders of the Tribunal. Accordingly we rectify the same and direct that paragraph No. 58.1 shall MA Nos. 4, 5 & 6/Hyd/2024 Page 3 of 5 stand the issue and insert paragraph No. 58.1, after paragraph No. 58, which shall be read as under: “58.1 Ground No. 2 by the Revenue relates to the orders of the learned CIT(A) in allowing deduction claimed under section 80-IA(4) of the Act in respect of the profits derived from projects awarded to Joint Venture entities. We find that this issue has already been decided in the preceding paragraphs i.e., paragraph No. 33 while deciding appeal filed by the Revenue for the assessment year 2015- 16. Following the similar reasoning, this ground raised by the Revenue is dismissed.” M.A. No. 6/Hyd/2024: 7. Learned AR drew the attention of the Bench to paragraph No. 69 of the order of the Tribunal and submitted that the Tribunal on mistaken facts, has decided the issue against the assessee by holding that the CPC was justified in denying deduction under section 80-IA of the Act. He submitted that insofar as eligible business is concerned, there is no loss, but there is a profit of Rs. 47,30,56,203/- in the projects eligible for deduction under section 80-IA. After set off of the loss from the other business activity, the net result is a loss of Rs. 3,89,90,692/-. Further, after considering the other income of Rs. 13,77,76,239/- the net result is gross profit of Rs. 9,87,85,547/-. He submitted that the decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Energy Ltd., reported in 441 ITR 346 was cited, but missed the attention of the Bench. If the decision of the Hon'ble Supreme Court is followed, the deduction under section 80- IA works out to Rs. 47,30,56,203/-. He accordingly submitted that since there are certain factual mistakes that are crept in the order of the Tribunal, the same requires rectification. 8. Learned DR, on the other hand, opposed the Miscellaneous Application filed by the assessee and submitted that it amounts to review of its own order of the Tribunal, which is not permissible in law. 9. We have gone through the record in the light of the submissions made on either side. We find that learned AR at the time of hearing, has MA Nos. 4, 5 & 6/Hyd/2024 Page 4 of 5 filed detailed submissions and has also relied on the decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Energy Ltd., (supra) and had computed the deduction under section 80-IA of the Act at Rs. 47,30,56,203/-. Non-consideration of the decision of the Hon'ble Supreme Court relied on by the assessee at the time of hearing constitutes a mistake apparent from record. Further, certain factual mistakes have also crept in the order of the Tribunal. We, therefore, rectify the mistakes and direct that paragraph No. 69 of the order shall be read as under: “69. We have gone through the record in the light of the submissions made on either side. Learned CIT(A) upheld the action of the CPC in denying deduction under section 80-IA of the Act on the ground that there was a loss of Rs. 3,89,90,692/-. It is the submission of the learned AR that after considering the other income of Rs. 13,77,76,239/-, the net result is gross profit of Rs. 9,87,85,547/- and in view of the decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Energy Ltd., 127 taxmann.com 69 (SC), the assessee is entitled the deduction under section 80-IA. Considering the totality of the facts in the interest of justice, we restore the issue to the file of the learned Assessing Officer with a direction to examine the issue afresh in the light of the decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Energy Ltd., (supra), and decide the issue as per fact and law, after giving due opportunity of hearing to the assessee. We hold and direct accordingly. This ground raised by the assessee is treated as allowed for statistical purposes.” 10. In the result, all the Miscellaneous Applications are allowed in the above said terms. Order pronounced in the open court on this the 12 th day of April, 2024. Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) VICE PRESIDENT JUDICIAL MEMBER Hyderabad, Dated: 12/04/2024 TNMM MA Nos. 4, 5 & 6/Hyd/2024 Page 5 of 5 Copy forwarded to: 1. M/s. Sushee Infra & Mining Limited, Plot No. 246/A, MLA Colony, Road No. 12, Banjara Hills, Hyderabad. 2. Deputy Commissioner of Income Tax, Central Circle-2(2), Hyderabad. 3. Asst. Commissioner of Income Tax, Central Circle-2(2), Hyderabad. 4. Pr.CIT(Central)-Hyderabad 5. DR, ITAT, Hyderabad. 6. GUARD FILE. TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD