D S Karunakar Reddy, Hyd, Hyderabad V. JCIT(Asst), Spl Range-3, Hyd, Hyderabad

MA 57/HYD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5403 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 02-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Assessee Lawyers: J PRABHAKAR
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 57/HYD/2016 (IN M.A NO. 113/HYD/2015 AND IN ITA NO. 402/HYD/201 1) ASSESSMENT YEAR : 2008-09) D.S. KARUNAKAR REDDY, HYDERABAD. PAN AHCPC 0573C VS. ASST. COMMISSIONER OF INCOME- TAX, RANGE 13, HYDERABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI J. PRABHAKAR REVENUE BY : SMT. SUMAN MALIK DATE OF HEARING : 03-02-2017 DATE OF PRONOUNCEMENT : 10-02-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: THE ASSESSEE HAS FILED THIS M.A. AGAINST THE M.A. N O. 113/HYD/2015 ARISING OUT OF ORDER DATED 16/09/2011 PASSED IN ITA NO. 402/HYD/2011. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED M.A. ARISING OUT OF ITA NO. 402/HYD/2011 DATED 16/09/201 1. LATER, THE ASSESSEE HAS WITHDRAWN THE M.A. ON 27/01/2016 STATI NG THAT THE ASSESSEE WANTS TO WITHDRAW THIS MA. ACCORDINGLY, T HE ABOVE M.A. WAS DISMISSED ON 29/01/2016. ASSESSEE HAS FILED ANO THER M.A. TO RECALL THE SAID M.A., WHICH WAS DISMISSED. 2.1 IN THE M.A. THE ASSESSEE STATED AS FOLLOWS: 1. YOUR PETITIONER'S MISCELLANEOUS APPLICATION AFOR ESAID FILED ON 7/9/2015 WAS DISMISSED AS WITHDRAWN VIDE ORDER OF H ON'BLE 2 M.A. NO. 57/HYD/2016 D.S. KARUNAKAR REDDY INCOME TAX APPELLATE TRIBUNAL IN M.A.NO.1L3/HYD/20L 5 DATED 29.01.2016 ON THE BASIS OF APPELLANT'S PETITION DAT ED 27.01.2016. 2. YOUR PETITIONER FILED THE ABOVE PETITION BASED O N THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) - III HYDE RABAD, WHO REFUSED TO TAKE COGNIZANCE OF THE ABOVE MISCELLANEO US APPLICATION PENDING ADJUDICATION AND UNILATERALLY D ISMISSED THE APPEAL IN-LIMINE, FOR WANT OF ALLEGED PAYMENT OF UN DISPUTED TAXES. 3. YOUR APPELLANT, FILED FURTHER APPEAL AGAINST THE AFORESAID COMMISSIONER OF INCOME TAX (APPEALS)- III ORDER BEF ORE THE HON'BLE INCOME TAX APPELLATE TRIBUNAL IN I.T.A. NO. 4/HYD/2016 WHICH WAS BROUGHT TO THE NOTICE OF THE HON'BLE INCO ME TAX APPELLATE TRIBUNAL VIDE PARA 5 OF THE PRAYER IN M.A.NO.1L3/HYD/2015 FILED ON 27.01.2016. 4. THE APPELLANT'S FRESH APPEAL IN I.T.A.NO. 4/HYD/ 2016 CAME UP BEFORE THE HON'BLE 'A' BENCH OF INCOME TAX APPELLAT E TRIBUNAL ON 2/8/2016 DURING WHICH TIME, HON'BLE BENCH FELT T HAT THEY CANNOT PROCEED WITH THE MERITS OF THE APPEAL, IN AS MUCH AS THE DEFECT IN I.T.A.NO. 402/HYD/2011 DATED 16/9/2011 AS REGARDS DEPOSIT OF ALLEGED TDS BY ASSESSEE HAVING NOT BEEN RECTIFIED BY THE ERSTWHILE BENCH, THEY ARE CONSTRAINED OR BOUND BY THE MISTAKEN IMPRESSION ON THE SAID ORDER AND UNTIL IT IS CURED, THE DIRECTION THEREIN WILL CONTINUE TO HOLD OR BE EFFEC TIVE, HOWEVER, BLATANT THE MISTAKE IS APPARENT ON RECORD. 5. IN VIEW, OF THE ABOVE, AND PARTICULARLY IN VIEW OF THE AVERMENTS, SEQUENTIALLY MADE OUT IN PARA'S 1 TO 7 O F PETITION DATED 27/1/2016 STATING THAT THE DIRECTIONS, IF ANY , ON THE MISCELLANEOUS APPLICATION CANNOT BE IMPOSED ON THE COMMISSIONER OF INCOME TAX (APPEALS)III, AND PARTIC ULARLY IN VIEW OF THE FACT THAT NO PRAYER FOR WITHDRAWAL OF T HE M.A WAS CANVASSED IN THE SAID PETITION(TITLED AS PETITION F OR WITHDRAWAL OF MISCELLANEOUS PETITION) THE SAID APPLICATION FOR WI THDRAWAL OF MISCELLANEOUS APPLICATION MAY NOT BE TREATED AS A P ETITION FOR WITHDRAWAL AS SUCH AND THE MISCELLANEOUS APPLICATIO N RESTORED FOR DISPOSAL ON MERITS. 6. THE ABOVE APPLICATION FOR RESTORATION AND DECISI ON ON THE AFORESAID MISCELLANEOUS APPLICATION IS IMPERATIVE T O RENDER JUSTICE ON THE APPEAL RENDERED IN I.T.A. NO. 402/HY D/2011 DATED 16/9/2011 AND IS CANVASSED ON THE BASIS OF SEVERAL DECISIONS OF COURTS OF LAW AS REGARDS THE INSTRUMENTALITY OF PUR SUING THE PROVISIONS OF SECTION 254 (2) TO CORRECT MISTAKES A PPARENT FROM RECORD. 3 M.A. NO. 57/HYD/2016 D.S. KARUNAKAR REDDY 7. THE RATIO DECIDENDI OF THE ORISSA HIGH COURT'S D ECISION [2011] 332 ITR 569 K.K. RAVINDRAN VS. ITAT IS NOT APPLICAB LE TO THE FACTS OF THE PRESENT MISCELLANEOUS APPLICATION BEIN G FILED FOR THE SECOND TIME SINCE THE HON'BLE I.T .A.T HAD NO OCCAS ION AT ANY POINT OF TIME SO FAR TO LOOK INTO OR ADJUDICATE ON THE IMPUGNED ADDITIONS IN THE PRESENT CASE AND THE APPEAL HAD BE EN DISMISSED IN-LIMINI WITHOUT GOING INTO THE MERITS OF THE APPE AL FILED. 8. IN SIMILAR VEIN, THE DECISION OF THE GUJARAT HIG H COURT IN [2015] 372 ITR 536 (GUJ) IN COMMISSIONER OF INCOME-TAX V.S MT. V ASANTBEN H. SHETH THAT A SECOND INNINGS UNDER SEC TION 254(2) IS NOT ALLOWED IS ALSO DISTINGUISHABLE ON FA CTS, ON ACCOUNT OF THE MERITS OF THE APPEAL IN THE FIRST INSTANCE B EING DECIDED IN THE SAID CASE HAS NO APPLICATION THE PRESENT M.A. O F THE APPELLANT. 9. THE ORDER IN M.A.NO.113/HYD/20L5 HAVING BEEN REC EIVED ON 27/02/2016, THE PETITIONER APPROACHED THE HON'BLE I.T.A.T NO SOONER THAN THE LEGAL IMPEDIMENTS IN DISPOSING THE SUBSEQUENT APPEAL FILED WAS BROUGHT TO THE NOTICE OF THE APPEL LANT. 10. THE PETITIONER RAISED THE FOLLOWING ISSUES IN M A NO. 113/HYD/2015 FOR ADJUDICATION BY THE HONBLE ITAT.: THE HON'BLE ITAT VIDE ITS ORDER DATED 16.09.2011 ALLOWED THE APPEAL FILED BY THE APPELLANT ASSESSEE WITH THE FOL LOWING DIRECTIONS: ' AFTER CONSIDERING THE TOTALITY OF FACTS AND CIRCU MSTANCES OF THE CASE, WE ARE OF THE VIEW OF THAT THE ISSUE BEFORE T HE CIT(A) SHOULD BE DECIDED ON MERITS THEREOF AND ACCORDINGLY , THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE AND MATTE R IS RESTORED TO HIS FILE WITH A DIRECTION TO ADMIT THE APPEAL OF THE ASSESSEE AFTER TAKING ON RECORD THE EVIDENCES OF TDS DEPOSIT ED BY THE ASSESSEE AND THEN TO DECIDE THE APPEAL BEFORE HIM I N ACCORDANCE WITH LAW ON MERITS PARTIES'. > THE ABOVE DIRECTIONS OF THE HON 'BLE BENCH TO VER IFY TDS DEPOSITED BY THE ASSESSEE IS NOT GERMANE TO THE ISS UE IN THE APPEAL, VIZ WHETHER THE ASSESSEE HAS PAID THE UNDIS PUTED TAXES ON THE DATE OF FILING OF APPEAL TO DETERMINE ADMISS ION OF THE APPEAL FOR ADJUDICATION ON MERITS IN ACCORDANCE WIT H SECTION 249(4) OF THE ACT. > THE ISSUE IN APPEAL BEFORE THE HON'BLE ITAT WAS A S TO WHETHER THE CIT(A) WAS JUSTIFIED IN DISMISSING THE APPEAL I N LIMINI WITHOUT GOING INTO THE MERITS OF THE APPEAL WHEN TAXES AND INTEREST DUE ON THE UNDISPUTED TAXES HAVE BEEN PAID ON THE DATE OF HEARING OF THE APPEAL BY THE CIT(A). 4 M.A. NO. 57/HYD/2016 D.S. KARUNAKAR REDDY > THE ABOVE DIRECTIONS BY THE HON'BLE ITAT TO VERIF Y THE ALLEGED TDS DEPOSITED BY THE ASSESSEE HAS NO CONSEQUENCE IN TERMS OF SECTION 249(4) IN AS MUCH AS THE ENTIRE EXPENSES CL AIMED IN THE RETURN OF INCOME FILED HAVE BEEN DISALLOWED AND IT IS PREMATURE ON THE PART OF THE HON'BLE ITAT TO COME TO A CONCLU SION AT THRESHOLD AS TO WHETHER ANY DISALLOWANCE IS CONTEMP LATED U/S 40(A) FOR ALLEGED NONPAYMENT OF TDS. > IN VIEW OF THE ABOVE THE HON'BLE ITAT MAY BE PLEA SED TO RECALL ITS ORDER CITED ABOVE, TO AMEND THE SAID DIRECTION ON VERIFICATION OF TDS DEPOSITED BY THE ASSESSEE BY DELETING REFERE NCE THEREOF AND DIRECT THE CIT (A) TO DISPOSE OF THE APPEAL ON MERITS OF THE CASE. 11.THE PETITIONER HUMBLY SUBMITS THAT HON'BLE INCOM E TAX APPELLATE TRIBUNAL MAY KINDLY RESTORE THE MISCELLAN EOUS APPLICATION AND DISPOSE THE SAME ON MERITS OF THE C ASE. 3. REFERRING TO THE ABOVE FACTUAL BACKGROUND, LD. A R SUBMITTED THAT EARLIER M.A. MAY BE RECALLED AND DISPOSE THE S AME ON MERITS OF THE CASE. 4. LD. DR SUBMITTED THAT ASSESSEE CANNOT FILE A M.A . TO RECALL EARLIER M.A., AS THERE IS NO PROVISION TO DO SO. MO REOVER, ORIGINAL ITAT ORDER WAS PASSED ON 16/09/2011. AS PER SECTION 254( 2), ASSESSEE CAN FILE THE MA WITHIN A PERIOD OF FOUR YEARS. IN T HIS CASE, LIMITATION PERIOD IS ALREADY OVER. 5. CONSIDERING THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL FACTS ON RECORD. WE FIND THAT THE ORIGINAL ORDER PA SSED BY THE ITAT IN ITA NO. 402/HYD/2011 FOR AY 2008-09 ON 16/09/2011. IF THERE IS ANY MISTAKE IN THE ORDER, ASSESSEE CAN FILE AN MA WITHI N A PERIOD OF FOUR YEARS I.E. BY 15/09/2015 FROM THE DATE OF ORDER. HO WEVER, IN THE GIVEN CASE, ASSESSEE HAS FILED 1 ST M.A. ON 07/09/2015 WITHIN THE PERIOD OF LIMITATION, WHICH WAS WITHDRAWN BY THE ASSESSEE AND THE SAID MA WAS DISMISSED AS WITHDRAWN BY THE COORDINATE BENCH ON 2 9/01/2016, WHICH IS NOT THE ORDER U/S 254(1) OF THE ACT, AS IT FALLS U/S 254(2) OF 5 M.A. NO. 57/HYD/2016 D.S. KARUNAKAR REDDY THE ACT, THERE IS NO PROVISION IN THE ACT, WHICH AL LOWS THE TRIBUNAL TO ACCEPT ANY M.A. ARISING OUT OF THE EARLIER M.A. IN OUR CONSIDERED VIEW, IRRESPECTIVE OF THE REASONING OF THE ASSESSEE OR ME RITS IN THE ASSESSEES CASE, THE TRIBUNAL HAS NO POWER TO ACCEP T ANY M.A. ON M.A. THE TRIBUNAL HAS POWER ONLY TO RECTIFY ANY MIS TAKE IN THE ORDER PASSED U/S 254(1). IN THE GIVEN CASE, THE ORDER WAS PASSED U/S 254(2), THERE IS NO PROVISION TO RECTIFY OR MODIFY THE ORDER PASSED U/S 254(2) OF THE ACT. SIMILAR VIEW WAS EXPRESSED BY TH E HONBLE ORISSA HIGH COURT IN THE CASE OF CIT AND OTHERS VS. ITAT A ND OTHERS, 196 ITR 838. ACCORDINGLY, WE ARE INCLINED TO REJECT THE MA FILED BY THE ASSESSEE SEEKING RELIEF. 6. IN THE RESULT, MA FILED BY THE ASSESSEE IS DISMI SSED. PRONOUNCED IN THE OPEN COURT ON 10 TH FEBRUARY, 2017. SD/- SD/- (D. MANMOHAN) (S. RIFAUR RA HMAN) JUDICIAL MEMBER ACCOU NTANT MEMBER HYDERABAD, DATED: 10 TH FEBRUARY, 2017 KV COPY TO:- 1) SHRI D.S. KARUNAKAR REDDY, FLAT NO. 302, SRI LAK SHMI NILAYAM, PLOT NO. 132, RAJEEV NAGAR, HYD. 500 045 2) DCIT, CENTRAL CIRCLE 6, HYDERABAD 3) CIT(A)- 1, HYDERABAD. 4) CIT AP-1, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A .T., HYDERABAD.- 6) GUARD FILE