Godhra Expressways Private Limited (Formerly known as BSCPL Godhra Tollways Limited), Hyderabad V. Income Tax Officer, Ward-1(3), Hyderabad

MA 55/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4049 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-03-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 37(1); 254(2)

Judgement Text

M.A. No.55 of 2022 Godhra Expressways P Ltd Hyderabad. Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ B ‘ Bench, Hyderabad Before Shri R.K. Panda, Accountant Member AND Shri K. Narasimha Chary, Judicial Member M.ANo.55/Hyd/2022 (Arising out of ITA No.2122/Hyd/2018) Assessment Year: 2013-14 Godhra Expressways (P) Ltd (formerly known as BSCPL Godhra Tollways Ltd), Hyderabad PAN:AAECBO7474N Vs. Income Tax Officer Ward 1 (3) Hyderabad (Appellant) (Respondent) Assessee by: Sri Ch Satya Dinakar, CA Revenue by : Sri Rohit Mujumdar, Sr.DR Date of hearing: 03/06/2022 Date of pronouncement: 07/06/2022 ORDER Per R.K. Panda, A.M Through this M.A., the assessee requests the Tribunal to rectify certain errors that have crept in the order of the Tribunal. 2. The learned Counsel for the assessee while referring to the contents of the M.A. drew the attention the Bench to the same which reads as under: “Sub: Miscellaneous Application u/s 254(2) of the Income Tax Act, 1961 - in the case of M/s Godhra Expressways Pvt. Ltd., (Formerly known as BSCPL Godhra Tollways Ltd.) (PAN: AAECB0747N) - in ITA No.2122/Hyd/2018 - Order dated 07/09/2021 received on 16/09/2021 - AY 2013-14 - Reg. M.A. No.55 of 2022 Godhra Expressways P Ltd Hyderabad. Page 2 of 4 1. With reference to above subject, while disposing the appeal vide order dated 07/09/2021, there is an inadvertent apparent mistake while adjudicating the ground urged by appellant vide ground no. 3 mentioned in page no. 3 of the order, the ground is reproduced as under: "3. The Ld. CIT(A) erred in disallowing the expenditure & treating the same as taxable income amounting to Rs. 17,03,927/- being amount paid towards Income Tax and Interest on TDS added to capital work in progress as the amount was not claimed as expenditure at all in the first place as there is no commencement of business. " 2. Whereas, in para no. 15.1 at page 33 of the order, the amount of Rs. 17,03,927/(details given at para no. 12.1, page no 27) was held to be disallowable U/S 37(1). The appellant has not at all claimed this expenditure in P&L account but was added to capital work in progress which clearly mentioned in the ground. Since the amount was not debited the provisions of section 37(1) are not applicable to the facts of the case. In this connection as this is an inadvertent mistake apparent from the record, we pray this Hon'ble tribunal to kindly admit this miscellaneous application and adjudicate the said ground by restoring the appeal to dispose the same in accordance with law. PRAYER Therefore, we pray to your kind honor to kindly admit this miscellaneous application and adjudicate the said ground by restoring the appeal in accordance with law to meet the ends of justice”. 3. Referring to the above, he submitted that the contents of the same are self-explanatory and therefore, the Tribunal should pass appropriate order as per law. 4. The learned DR, on the other hand, submitted that the Tribunal has passed a detailed order while deciding the issue. There is no apparent error in the order of the Tribunal. Therefore, through this M.A. the assessee is requesting the Tribunal to recall the order which amounts to review of its own order by the Tribunal which is not permissible in law. He also relied on the M.A. No.55 of 2022 Godhra Expressways P Ltd Hyderabad. Page 3 of 4 recent decision of the Hon'ble Supreme Court in the case of CIT vs. Reliance Telecom Ltd (440 ITR 1 (SC). 5. We have heard the rival arguments made by both the sides and perused the order. We find that the Tribunal, while deciding the issue has passed an elaborate order and the learned Counsel for the assessee could not point out any apparent error in the order of the Tribunal so as to invoke the provisions of section 254(2) of the I.T. Act. Further, the Hon'ble Supreme Court in the case of CIT vs. Reliance Telecom Ltd (Supra) at para 4 of the order has observed as under: “4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT 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 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, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT 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 ITAT 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." 6. In view of the decision of the Hon'ble Supreme Court cited (Supra) and in absence of any apparent error being pointed out by the learned Counsel for the assessee in the order of the Tribunal, the M.A filed by the assessee requesting the Tribunal to recall the order deserves to be dismissed. M.A. No.55 of 2022 Godhra Expressways P Ltd Hyderabad. Page 4 of 4 7. In the result, the M.A filed by the assessee is dismissed. Order pronounced in the Open Court on 7 th June, 2022. Sd/- Sd/- (K. NARASIMHA CHARY) JUDICIAL MEMBER (R.K. PANDA) ACCOUNTANT MEMBER Hyderabad, dated 7 th June, 2022. Vinodan/sps Copy to: S.No Addresses 1 M/s. Godhra Expressways (P) Ltd, Patna Bakhtiyarpur Tollways Ltd, M/s. Anjaneyulu & Co. C.As, 30 Bhagyalakshmi Nagar, Gandhinagar, Hyderabad 500080 2 Income Tax Officer Ward 1(3) Hyderabad & ITO Ward 16(2) Hyderabad 3 CIT (A)- 1,Hyderabad 4 CIT (A)- 4, Hyderabad 5 Pr. CIT-4, Hyderabad 6 DR, ITAT Hyderabad Benches 7 Guard File By Order