Patna Bakhtiyarpur Tollway Limited, Hyderabad V. Income Tax Officer, Ward-16(1), Hyderabad

MA 57/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4047 (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: PartlyAllowed
• Bench Allotted: DB-B
• Assessment Year: 2014-2015
• Appeal Filed On: 29-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside; FORM 26AS
• Section: 254(2)

Judgement Text

MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 1 of 6 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.ANos.56 & 57/Hyd/2022 (Arising out of ITA Nos.547 & 548/Hyd/2018) Assessment Years: 2013-14 & 2014-15 Patna Bakhtiyarpur Tollway Ltd, Hyderabad PAN:AAFCP9577K Vs. Income Tax Officer Ward 16 (2) 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 these M.As, the assessee requests the Tribunal to rectify certain errors that have crept in the order of the Tribunal: M.A. No.56/Hyd/2022: 2. The learned Counsel for the assessee referring to the contents of the M.A drew the attention of 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 Patna Bakhtiyarpur Tollway Limited (PAN: AAFCP9577K) in ITA No.547/Hyd/2018 - Order dated 07/09/2021 received on 16/09/2021 - AY 2013-14 - Reg. 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 MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 2 of 6 page no. 34 of the order, the ground is reproduced as under: "3. The Ld. CIT(A) ought to have allowed the TDS Credit on the amounts received from NHAI and remitted on a 100% back to back basis on gross value to BSC-C&C JV which was duly offered to tax by the JV. " 2. Whereas, in para no. 19 at page 34 of the order, it was mentioned that "We do not find any error in restricting the TDS credit to Rs. 2,96,061/- as the assessee has not offered the corresponding receipts as income in the impugned A Ys. " However, as clearly mentioned in our submission vide Brief Note Para No. 3, Page No.6 filed on 03/05/2019, the entire receipts were transferred to JV on 100% back to back contract basis, the submissions are reproduced as under: "3. With respect to not giving TDS credit to the extent of Rs. 10,06,832/- for AY 2013-14 & Rs. 30,50,951/- for AY 2014-15, AD has disallowed the credit by simply stating that no income has been offered. It is to be noted that originally the work was allocated to the Consortium of BSCPL Infrastructure Limited and C&C Construction Limited and later on the SPV was formed by the consortium member as was required by the NHAL the SP V is specifically formed to ensure that the funds are utilized exclusively for the stated purpose. All the work awarded to the appellant is in fact executed by the BSC-C&C JV vide the EPC Contract Agreement between the Appellant and BSC-C&C JV The gross contract amount was transferred immediately to JV after deducting TDS under 100% back to back contract basis. The copy of Form 16A's evidencing that TDS was paid are enclosed in the form of paper book. It is also pertinent to note that the JV has offered the said receipts as its income. Thus, A 0 has erred in concluding that the said amounts have not been offered as income wherein fact the said amounts cannot be treated as income of the appellant as the amounts were transferred to JV on 100% back to back basis and therefore, the credit of TDS is to be allowed and question of offering TDS does not arise. " In this connection as this is an inadvertent mistake apparent from the record in not considering the grounds urged and submissions as stated above, 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”. MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 3 of 6 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 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 MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 4 of 6 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. 7. M.A. No.57/Hyd/2022: After hearing both sides, we find the assessee has filed the M.A by stating as under: “Sub: Miscellaneous Application u/s 254(2) of the Income Tax Act, 1961 - in the case of M/s Patna Bakhtiyarpur Tollway Limited (PAN: AAFCP9577K) in ITA No.548/Hyd/2018 - Order dated 07/09/2021 received on 16/09/2021 - AY 2014-15 - Reg. 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 no. 3 & 4 urged by appellant. Ground no. 3 mentioned in page no. 34 of the order, the ground is reproduced as under: "3. The Ld. CIT(A) ought to have allowed the TDS Credit on the amounts received from NHAI and remitted on a 100% back to back basis on gross value to BSC-C&C JV which was duly offered to tax by the JV. " 2. Whereas, in para no. 19 at page 34 of the order, it was mentioned that "We do not find any error in restricting the TDS credit to Rs. 2,96,061/- as the assessee has not offered the corresponding receipts as income in the impugned AYs. " However, as clearly mentioned in our submission vide Brief Note Para No. 3, Page No.6 filed on 03/05/2019, the entire receipts were transferred to N on 100% back to back contract basis, the submissions are reproduced as under: "3. With respect to not giving TDS credit to the extent of Rs. 10,06,832/- for AY 2013-14 & Rs. 30,50,951/- for AY 2014-15, AO has disallowed the credit by simply stating that no income has been offered. It is to be noted that originally the work was allocated to the Consortium of MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 5 of 6 BSCPL Infrastructure Limited and C&C Construction Limited and later on the SPV was formed by the consortium member as was required by the NHAI, the SPV is specifically formed to ensure that the funds are utilized exclusively for the stated purpose. All the work awarded to the appellant is in fact executed by the BSC-C&C JV vide the EPC Contract Agreement between the Appellant and BSC-C&C JV. The gross contract amount was transferred immediately to JV after deducting TDS under 100% back to back contract basis. The copy of Form 16A's evidencing that TDS was paid are enclosed in the form of paper book. It is also pertinent to note that the JV has offered the said receipts as its income. Thus, A 0 has erred in concluding that the said amounts have not been offered as income wherein fact the said amounts cannot be treated as income of the appellant as the amounts were transferred to JV on 100% back to back basis and therefore, the credit of TDS is to be allowed and question of offering TDS does not arise. " 3. Further on going through the above order, it appears that ground no. 4 of the appeal was not adjudicated which reads as under: "4. The Ld. CIT(A) ought to have deleted the addition of Rs. 6,80,800/which is duly accounted for in total bill amount of Rs. 17,62,67,787/- as against in receipt in Form 26AS of Rs. 15,25,47,600/-" In this connection as this is an inadvertent mistake apparent from the record in not considering the grounds urged and submissions as stated above, 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”. 8. So far as clause (i) & (ii) of the M.A are concerned, we have already decided the issue while adjudicating the M.A. No.56/Hyd/2022 in the preceding para. Therefore, to this extent, the points raised by the assessee in this M.A are dismissed. So far as non adjudication of Ground of Appeal No.4 is concerned, we find that although the assessee has taken a specific ground before the Tribunal, however, the same remained to be adjudicated by the Tribunal. Therefore, a mistake has crept in the order of the Tribunal which needs rectification. We, therefore, recall the order in ITA 548/Hyd/2018 for the A.Y 2014-15 for the limited purpose MMA Nos 56 and 57 of 2022 Patna Bakhtiyarpur Tollway Ltd Hyderabad Page 6 of 6 of adjudicating Ground of appeal No.4 raised by the assessee in the said appeal. 9. In the result, M.A No.56/Hyd/2022 is dismissed and M.A. No.57/Hyd/2022 is partly allowed. 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