GVPR Engineer Limited , Hyderabad V. Dy.Commissioner of Income Tax, Circle-2(2), Hyderabad

MA 59/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4454 (ITAT-HYDERABAD)
• Duration Of Justice: 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2014-2015
• Appeal Filed On: 10-04-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revision of order; Depreciation; Tax effect; Additional evidence; Tax effect; Set aside
• Section: 154; 260A; 80IA; 207; 254(2); 113; 13

Judgement Text

MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 1 IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ A ‘ Bench, Hyderabad Before Before Shri Laliet Kumar, Judicial Member AND Shri Laxmi Prasad Sahu, Accountant Member M.A.Nos. 58 & 59/Hyd/2022 in ITA Nos.1617 & 1618/Hyd/2017 Assessment Years: 2013-14 & 2014-15 GVPR Engineers Limited, Hyderabad. PAN : AAAC G7614F The A sst.C ommissioner of Income Tax, Circle 2(2), Hyderabad. (Petitioner / Appellant) (Respondent) Assessee by: Shri P. Murali Mohan Rao, CA Revenue by : Shri T . Sunil Goutam for Shri Rajendra Kumar CIT-DR Date of hearing: 29.04.2022 Date of pronouncement: 06.05.2022 O R D E R Per Laliet Kumar J.M. These are the Miscellaneous Applications filed by the assessee feeling aggrieved by the order of co-ordinate Bench of the Tribunal dt.23.11.2021 in ITA Nos.1617, 1618, 1576 and 1577/Hyd/2017 for A.Y.s 2013-14 and 2014-15 alleging that certain mistakes were there in the said order and therefore, the order passed by the Tribunal has to be recalled u/s 254(2) of the Act. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 2 2. In the application, the ld.AR for the assessee had submitted that there are various mistakes including the following mistakes in the order passed by the Tribunal: “I. The Hon'ble ITAT in its common order for AY 2013-14 & 2014-15 on appeals filed by the appellant as well as the Revenue vide ITA No's 1617/Hyd/2017, ITA No.1618/Hyd/2017 and ITA No.1576/Hyd/2017 and ITA No.1577/Hyd/2017, had dismissed the appeal of the assessee and allowed the appeal in favour of the revenue. II. The Hon'ble ITAT while deciding the issue against the assessee has erred in not considering the decision of the Hon'ble Tribunal Co-ordinate Bench in the appellant's own case for the Assessment year 2004-05 to 2009-10 dated: 29-02-2012 where in the issue has been set aside to the file of AO for further verification. III. The Hon'ble ITAT in the case of the appellant in ITA No. 1017/H/2016 and 1018/H/2016 for the assessment years 2011-12 & 2012-13 on the same issue of claiming deduction u/s 80lA directed the Id. CIT(A) to follow the order of the Hon'ble ITAT dated 29.02.2012 in ITA No. 347/Hyd/2008. IV. However, for the year under consideration Hon'ble ITAT without following the precedent of the Hon'ble Tribunal Co-ordinate Bench in the appellant's own case for the Assessment Year 2004-05 to 2009-10 dated: 29.02.2012 dismissed the appeal of the assessee for the AY of 2013-14. for the AY 2013-14. Thus, there is an inconsistency with the earlier decision of the said Hon'ble ITAT in passing the order for this assessment year 2013.14. V. The other ground that the assessee has taken is overlapping of part facts in terms of clients in the AY's 2012-13 and 2013-14. The assessee has thus taken the stand that since part facts in terms of clients are overlapping then the assessee should be allowed on the ground of consistency. VI. The assessee has also taken a stand that since the new clients of A Y 2013-14 are to be treated as Developers, deduction should be allowed under section 80IA. Thus, the assessee has raised the ground that facts were not adjudicated in assessee's favour by the Hon'ble ITAT. VII. Therefore, the assessee prayed that the impugned order may be recalled, and the order and the Hon'ble Tribunal may reconsider the facts, grounds of appeal and submissions.” 3. Ld.AR has drawn our attention to Para 5.3 and 5.4 at Page 7 of the impugned order dt.23.11.2021 which is to the following effect : MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 3 MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 4 “5.4 Since the issue involved is similar for the year under appeal also, the decision of the Hon’ble ITAT vide order in ITA Nos.765 & 640/H/2014 & C.O.No.47/H/14, dt.29.02.2016 holds good for the A.Ys. 2013-14 also. Therefore, the AO’s action in disallowing the assessee’s claim of deduction of Rs.12,44,76,019/-, u/s.80IA(4)(iv)(b) of the Act holds is justified and hence, the same is confirmed. As a result, the grounds raised are dismissed.” 4. It was submitted by the ld.AR that sole basis of the order passed by Tribunal was mistaken reliance on the order passed in ITA Nos.765 and 740/Hyd/2014 and C.O.No.47/Hyd/2014 order dt.29.02.2016 pertaining to section 80IA(4)(iv)(b) of the Act. 5. It was submitted by the ld.AR that the Tribunal while dismissing the ground pertaining to section 80IA(4)(iv)(b) has inadvertently not considered the decision of co-ordinate Bench of the Tribunal for A.Ys. 2004-05 to 2009-10. He also submitted that the Tribunal had also inadvertently not considered the binding decision of the co-ordinate Bench for the assessment year 2011-12 in ITA Nos.1017/Hyd/2016, 1018/Hyd/2016, 521/Hyd/2017 and 20/Hyd/2017 dt.05.12.2019 despite, the said orders were available on record. Our attention was drawn to Paragraphs 5.1, 6.1 and 7 of the said decision dated 5/12/2019, which is to the following effect:- “5.1. Summarizing the Grounds, Ld.Counsel for the assessee submitted that Ground Nos.1 to 4 relates to allowability of the deduction u/s. 80IA(4)(iv)(b) of the Act and Ground No.5 pertains to disallowance made u/s.14A of the Act. 6. Regarding Ground Nos.1 to 4 for the AY.2011-12, covering the issues raised in the Grounds of both the appeals for both the years, Ld.Counsel for the assessee made the following written submissions, and the same are extracted as under: “Issues involved in these appeals are: Deduction under section 80IA(4)(i)(c) in respect of civil works including irrigation Projects and 80IA(4)(iv)(b) in respect of Electrical Projects MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 5 1. Assessee Appeal are in relation to disallowance of deduction under section 80IA in respect of Electrical projects u/s 80IA(4)(iv)(b) : The CIT(A) based on the appeal order of the CIT(A) & ITAT for the Assessment year 2010-11 in ITA No. 765/Hyd/2014, 740/Hyd/2014 & CO No. 47/Hyd/2014 dated 29-02-2016, differing from the earlier ITAT order in Assessee's own case for Assessment year 2004-05 to 2009-16 ITA No. 347/Hyd/200S & 13 others dated 29-02-2012. The Hon'ble ITAT in its order in ITA No 347/Hyd/2005, at pages 16 to 21 the projects are extracted and the direction of the ITAT is at 44 8th line reads as under: "Therefore, in our considered view, the assessee should not be denied the deduction under section 811A of the Act if the contracts involves design, development, operating & maintenance, financial involvement and defect correction and liability period then such contracts cannot be called a simple works contracts to deny the deduction u/s 80IA of Act. in our opinion the contracts which contain above features to be segregated on this deduction u/s 80IA has to be granted and the other agreements which are pure works contracts hit by the explanation section 80IA(13), those works are not entitle for deduction u/s 80IA of the Act. The Profit from the contracts which involves design, development, operating & maintenance, financial involvement and defect correction and liability period is to be computed by assessing Officer on pro-rata basis of turnover. The assessing officer is directed to examine the records accordingly and grant deduction on eligible turnover as directed above. ..............” In view of the above directions of the ITAT both irrigation projects as well as Electrical projects are eligible for deduction under section 80IA(4)(i)(c) and 80IA(4)(iv) of the Income Tax Act, 1961. For the Assessment year 2010-11 the CIT(A) as well as the ITAT have denied deduction under section 80IA (4) (vi) (b) the relevant para are: CIT(A) Order pages 9 para 6.5 reads as under: Thus, as far as these two electrical works are concerned, the appellant is not eligible for deduction u/s 80IA(4)(iv)(b), since the appellant is not a power transmission or distribution undertaking. The deduction claimed to the tune of Rs. 3,63,21,718/- is therefore erroneous and is not admissible. Accordingly, the disallowance made to this extent is therefore upheld. and ITAT order at page 9 & 10 para 8.1 towards end gave a finding: "we find that though the projects therein included electricity projects as well, ITAT has not brought out the distinction between section 80IA(4)(iv)(b) and therefore, it cannot be said that this issue is covered by those orders. From the above observations and the detailed observations made by the CIT(A) to come to a conclusion that the assessee is not eligible to claim deduction u/s 80IA(4)(iv)(b). Accordingly, we uphold the order of the CIT(A) on this issue and dismiss the ground of appeal of assessee." We submit that the undertaking referred to in section 80IA(4)(iv) and undertaking referred to in the proviso to section 80IA(4)(iv)(b) are different and cannot be the same. The Undertaking MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 6 referred to in section 80IA(4)(iv) can be confined to the power transmission or distribution undertaking whereas the undertaking referred to the proviso to this section is different. The proviso reads as under: "Provided the deduction under this section to an undertaking under sub-clause (b) shall be allowed only in relation to the profits derived from laying of such 'network of new lines for transmission or distribution." In case the undertaking involved in transmission and distribution undertakes laying of the such network of new lines will be capital and nature and cannot earn profit for such laying of new lines, therefore, there has to be another undertaking. Hence your appellant is eligible for deduction on profits from electrical projects. It is prayed that deduction under section 80IA(4)(iv)(b) may be allowed. 2. The Department appeal are in respect of deduction allowed by CIT(A) under section 80IA(4)(i)(c) - The CIT(A) has followed the ITAT order for AY 2004-05 to 2009-10, in ITA NO 347/H/2008 & others, Order of the CIT(A) as well ITAT order for AY 2010-11, the relevant para are: The Hon'ble ITAT in its order in ITA No 347/Hyd/2008, at pages 16 to 21 the projects are extracted and the direction of the ITAT is at 44 8th line reads as under: "Therefore, in our considered view, the assessee should not be denied the deduction under section 811A of the Act if the contracts involves design, development, operating & maintenance, financial involvement and defect correction and liability period then such contracts cannot be called a simple works contracts to deny the deduction u/s 80IA of Act. in our opinion the contracts which contain above features to be segregated on this deduction u/s 80IA has to be granted and the other agreements which are pure works contracts hit by the explanation section 80IA(13), those works are not entitle for deduction u/s 80IA of the Act. The Profit from the contracts which involves design, development, operating & maintenance, financial involvement and defect correction and liability period is to be computed by assessing Officer on pro-rata basis of turnover. The assessing officer is directed to examine the records accordingly and grant deduction on eligible turnover as directed above. ................” For the Assessment year 2010-11 the CIT(A) as well as the ITAT have allowed deduction under section 80lA (4) (1) (c) the relevant para are: CIT(A) Order pages 6 para 6.2 reads as under: “The issue in the earlier order before the Hon'ble Tribunal was whether the appellant is a work contractor or not. The tribunal had given a finding that the appellant is not a mere work contractor and is therefore intitled for deduction u/s 80IA. Thus, once an appellant is eligible for the deduction under section 80IA, then, this claim is to be allowed in terms of the order of the Hon'ble ITA T in appellant's own case for earlier years. This finding can therefore be applied to the first three projects namely the claim of deduction u/s 80IA (4)(1)(c). Accordingly, the claim of the deduction u/s 80IA(4)(i)(c) to the tune of Rs. 5,15,54,567/- is therefore allowed." MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 7 and ITAT order at page 11 para 10.1 reads as under: "The revenue has filed an appeal u/s 260A of the Act challenging the above order of ITAT before the Hon'ble High Court. In the said order, it was held that these contracts are not in the nature of works contracts and thereby Explanation to the provisions of section 80IA(13) are not attracted. Hence, just to maintain consistency with the stand of the revenue and to keep the issue alive, AO has disallowed the deduction u/s 80IA(4)(i)(c). Apart from that there is no merit in such disallowance. However, the Id. CIT(A) has allowed assessee's claim u/s 80IA(4)(i)(c) relying on the order of the coordinate bench of this tribunal (supra), hence, we are inclined to uphold the order of CIT (A). in this regard as the order of the CIT(A) is in line with the order of ITAT." in view of the above, the Department appeals may be dismissed”. 6.1. Further, relying on the decision of Hon'ble ITAT vide its order dt.29-02-2012 in ITA No.347/Hyd/2008 and others, Ld.Counsel for the assessee submitted that all these issues have to be remanded to the file of CIT(A) for passing an order in compliance with the said order of the Tribunal. Referring to above note, Ld.Counsel for the assessee submitted that the assessee is entitled to deduction u/s.80IA(4) of the Act in respect of both the types of the Projects. The said order of the Tribunal helps the assessee if an effect is given and the said decision is honoured by the AO. Further, referring to the allowability of deduction u/s.80IA(4)(i)(c) of the Act, Ld.Counsel for the assessee submitted that the ITAT already taken a view in this regard and consequently, the appeals of the Revenue are dismissed. 7. After hearing both the sides and also considering the decision of the Co-ordinate Bench of the Tribunal in assessee’s own case cited supra, we are of the opinion that the directions should be given to the CIT(A) to go by the said order of the Tribunal. AO shall grant an opportunity of being heard. Accordingly, Ground Nos.1 to 4 are allowed for statistical purposes.” 6. It was further submitted by the ld.AR that feeling aggrieved by the order of the Tribunal dt.05.12.2019, the Revenue had filed Miscellaneous Application vide M.A.No.33/Hyd/2020 for A.Ys.2011-12 and 2012-13 and the said M.A. was also dismissed by the Tribunal. It was submitted by the ld.AR that since there was a binding decision of the co-ordinate Bench of the Tribunal in favour of the assessee for the earlier years ( except for one intervening year ) therefore, the Tribunal had committed mistake by non-following the decision in favour of assessee for A.Ys. 2011-12 and 2012-13. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 8 7. Further ld. PCIT had dropped the proceedings after invoking the order u/s 263 of the Act for A.Ys.2004-05 to 2007-08 and our attention was drawn to the order of ld. PCIT dt.30.03.2015. It was submitted that the Tribunal had also erred in not considering the order of the ld. PCIT whereby the benefit granted to the assessee for the previous years. 8. The ld.AR had also submitted that after the Tribunal’s order dt.05.12.2019, the Assessing Officer had also passed the consequential order giving benefit for the A.Ys. 2011-12 and 2012-13. It was submitted by the ld.AR that since the impugned order passed by the Tribunal was only mistakenly based on A.Y. 2010- 11, therefore Tribunal had erred in not following Tribunal orders for A.Ys.2004-05 to 2009-10, A.Ys. 2011-12 and 2012-13, the order of ld. PCIT dt.30.03.2015 for AYs. 2004-05 to 2007-08 and order given effect to by the Assessing Officer dt.30.09.2021 and lastly the dismissal order of M.A. passed by Tribunal on 15.02.2021, therefore, the order passed by Tribunal suffered from mistake which is apparent from record. 9. With respect to the second limb that whether the assessee is entitled for claiming deduction u/s 80IA(4)(i)(c) of the Act or not, ld.AR has drawn our attention to the order of Tribunal dt.23.11.2021 before us, more particularly, Paras 6 and 6.1 wherein the observations of AO and contentions of ld.AR were reproduced. It was submitted by the ld.AR that all the previous years (from A.Y. 2004-05 till A.Y 2012-13), Tribunal had granted the deduction to the assessee. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 9 MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 10 MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 11 10. The ld.AR submitted that despite the favorable orders in favour of the assessee from A.Ys.2004-05 to 2012-13, the Tribunal had wrongly dismissed the claim of the assessee, by inadvertently relying upon the decision of Tribunal in the case of M/s. NEC NCC MAYTAS – JV Vs. DCIT in ITA No.496/Hyd/2018 dt.12.05.2021. 11. It was submitted by the ld.AR that the Tribunal had committed mistake by wrongly recording that in the earlier Tribunal’s orders, the Tribunals not considered the Explanation to section 80IA(iv)(4) of the Act. The above said fact is contrary to the record as it is apparent from the orders passed by the Tribunal. 12. The ld.AR had submitted that the Tribunal while applying the decision in the case of NCC MAYTAS – JV Vs. DCIT(supra), Tribunal had not discussed the merits of the case of the assessee and no factual foundation was laid as to how the decision in the case of NCC MAYTAS – JV Vs. DCIT (supra) was applicable to the present facts of the case. In fact, none of the grounds of the assessee’s appeal were adjudicated. Further, there was no factual determination by the Tribunal, Hence it was submitted that non adjudication of issues/grounds on merit by the Tribunal cannot be equated with the erroneous decision on merit by Tribunal and hence, the assessee requested for recalling the order. 13. The ld.AR further submitted that the decision of Tribunal in the case of assessee for earlier assessment years is required to be followed and not following the decision of co-ordinate Bench of the Tribunal and deciding the issue against the MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 12 assessee is a mistake apparent from record and in view of the decision of hon’ble Supreme Court in the case of Honda Siel Power Products Ltd Vs. CIT (2007) 165 Taxman 307 and the decision in the case of III Member Case of Bangalore ITAT in the case of ITO Vs. M/s. Minnow Trading Company Pvt. Ltd. dt.29.01.2020 (M.P Nos.182 and 183/Bang/2017 in ITA Nos.5927 and 5929/Bang/2008), Hence it was submitted that the present M.A.s are required to be recalled. 14. Lastly, ld.AR submitted that the mistake committed by the Tribunal will have impact on the appeals pending before hon’ble High Court as the Tribunal has wrongly mentioned in its order at Para 6 of Page 28 that in preceding assessment years, Tribunals nowhere discussed the clinching operation of the “Explanation” of section 80IA. The ld.AR had submitted that the Revenue had filed the appeal against the favourable order passed by the Tribunal and the same is pending adjudication before the hon’ble High Court. 15. On the other hand, ld.DR has drawn our attention to the decision of co-ordinate Bench of the Tribunal in the case of M/s. NEC NCC MAYTAS – JV Vs. DCIT (supra). The contention of ld.DR is that the Tribunal has correctly followed the decision in the case of M/s. NEC NCC MAYTAS – JV Vs. DCIT (supra) and that there were no mistakes on the part of the Tribunal in passing the decision and further submitted that as per the decision of hon’ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd (2021) 133 taxmann.com 41 (SC), the Tribunal cannot revisit its earlier order and recall the same. 16. The ld.DR had filed a detailed written submissions opposing the M.A applications filed by the assessee. The submissions made by the Revenue are as under : MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 13 “2. As evident from the details, the assessee has taken the grounds of inconsistency with the earlier decisions of the said Hon’ble ITAT and that since part facts in terms of clients are overlapping with a favourable decision then the assessee should be allowed the appeal on the ground of consistency. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. 3. In the said case, the assessee has failed to establish any mistake apparent from record, the grounds raised by the assessee about following consistency is not applicable as the Hon'ble ITAT in its common order for AY 2013-14 & 2014-15 on appeals filed by the appellant as well as the Revenue vide ITA No’s 1617/Hyd/2017, ITA No.-1618/Hyd/2017 and ITA No.1576/Hyd/2017 and ITA No.1577/Hyd/2017, had adjudicated the facts and law of the respective assessment year and placed reliance on the assesssee’s own case for AY 2010-11 vide order ITA NO’s 765,740 and CO 47/H/14 dated 29.02.2016 and decision dated 12.05.2021 in ITA No. 496/H/2018 M/s NEC NCC Maytas-JV wherein the Hon’ble Tribunal has analysed the issue of allowability of deduction in the development of irrigation works and work contracts under the statutory explanation to section 80IA. As there is a conscious appreciation of facts and diverging precedents in the case of the assessee by the Hon’ble Tribunal, the assessee has failed to establish any mistake apparent from record. Importantly, the assessee has stated that the order for Assessment year 2004-05 to 2009-10 dated: 29-02-2012 vide ITA No.1471-1487/Hyd/2017 in the assessee’s own case is in his favour. However, the factual position is that in the said appeals, the issue has been set aside to the file of AO for further verification. The relevant extract of para 30 of the said order is reproduced below, which clarifies that there was no clear order in favour of the assessee: 30. We find that the decision relied on by the learned counsel for the assessee in the case of CIT vs. Laxmi civil Engineering works [supra] squarely applicable to the issue under dispute which is in favour of the assessee wherein it was held that mere development of a infrastructure facility is an eligible activity for claiming deduction under section 80IA of the Act after considering the Judgement of the Mumbai High Court in the case of ABG Heavy Engineering [supra]. The case of ABG is not the pure developer whereas, in the present case, the assessee is the pure developer. We also find that Section 80IA of the Act, intended to cover the entities carrying out developing, operating and maintaining the infrastructure facility keeping in mind the present business models and intend to grant the incentives to such entities. The CBDT, on several occasions, clarified that pure developer should also be eligible to claim deduction under section 80IA of the Act, which ultimately culminated into Amendment under section 80IA of the Act, in the Finance Act 2001, to give effect to the aforesaid circulars issued by the CBDT. We also find that, to avoid misuse of the aforesaid amendment, an Explanation was inserted in Section 80IA of the Act, in the Finance Act-2007 and 2009, to clarify that mere works contract would not be eligible for deductions under section 80IA of the Act. But, certainly, the Explanation cannot be read to do away with the eligibility of the developer; otherwise, the parliament would have simply reversed the Amendment made in the Finance Act, 2001. Thus, the aforesaid Explanation was inserted, certainly, to deny the tax holiday to the entities who MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 14 does only mere works contact or subcontract as distinct from the developer. This is clear from the express intension of the parliament while introducing the Explanation. The explanatory memorandum to Finance Act 2007 states that the purpose of the tax benefit has all along been to encourage investment in development of infrastructure sector and not for the persons who merely execute the civil construction work. It categorically states that the deduction under section 80IA of the Act is available to developers who undertakes entrepreneurial and investment risk and not for the contractors, who undertakes only business risk. Without any doubt, the learned counsel for the assessee clearly demonstrated before us that the assessee at present has undertaken huge risks in terms of deployment of technical personnel, plant and machinery, technical know-how, expertise and financial resources. Further, the order of Tribunal in the case of B.T.Patil cited supra is prior to amendment to sec 80IA(4), after the amendment the section 80IA(4) read as (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility, prior to amendment the “or” between three activities was not there, after the amendment “or” has been inserted w.e.f. 1-4-2002 by Finance Act 2001. Therefore, in our considered view, the assessee should not be denied the deduction under section 80IA of the Act if the contracts involves design, development, operating & maintenance, financial involvement, and defect correction and liability period, then such contracts cannot be called as simple works contract to deny the deduction u/s 80IA of Act. In our opinion the contracts which contain above features to be segregated on this deduction u/s. 80-IA has to be granted and the other agreements which are pure works contracts hit by the explanation section 80IA(13), those work are not entitle for deduction u/s 80IA of the Act. The profit from the contracts which involves design, development, operating & maintenance, financial involvement, and defect correction and liability period is to be computed by assessing officer on pro-rata basis of turnover. The assessing officer is directed to examine the records accordingly and grant deduction on eligible turnover as directed above. It is needless to say that similar view has been taken by the Chennai Bench of the Tribunal and deduction u/s. 80IA was granted in the case of M/s. Chettinad Lignite Transport Services (P) Ltd., in ITA No. 2287/Mds/06 order dated 27 July, 2007 for the assessment year 2004-05. Later in ITA No. 1179/Mds/08 vide order dated 26 Th February, 2010 the Tribunal has taken the same view. 4. Further, the assessee has also taken the ground that facts were not adjudicated in assessee’s favour by the Hon’ble ITAT. By no stretch of imagination this can be called a mistake apparent from record to invoke jurisdiction under section 254(2). If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, the only remedy available to the Assessee was to prefer the appeal before the High Court. Numerous judicial precedents as below have upheld this view. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 15 MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 16 5. The existing understanding about the scope and powers under section 254(2) ae bound by the ruling in CIT v. Reliance Telecom Ltd. - [2021] 133 taxmann.com 41 (SC), Hon’ble SC has held that the order passed by the ITAT recalling its earlier order is beyond the scope and ambit of the powers under section 254(2). In exercise of powers under section 254(2), the ITAT may amend any order passed by it to rectify any mistake apparent from the record only. The Tribunal cannot revisit its earlier order and go into detail on merits. The powers under section 254(2) are only to correct and/or rectify the mistake apparent from the record. Merely because the assessee might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2). In the instant case, a detailed order was already passed by the ITAT, which was held in favour of the revenue. Therefore, the said order could not have been recalled by ITAT in the exercise of powers under section 254(2). If the assessee believed that the order passed by the ITAT was erroneous, either on facts or in law, the only remedy available was to prefer the appeal before the High Court. 6. The decision of the Honourable Supreme Court in the case of Reliance Telecom Limited reported in 133 taxmann.com 41 on 3RD December 2021 brought in sharp focus on the scope of powers conferred upon the Income Tax Appellate Tribunal under section 254 (2). In this case, the Hon’ble SC has opined that while allowing the application under section 254(2) of the Act and recalling its earlier order, the ITAT has re-heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. The powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. The ITAT becomes functus officio after delivering its original order and if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act. 7. When the term Functus Officio is used in relation to the tribunal, it means that once the tribunal passed any judgment after the lawful hearing, then the case cannot reopen, and the judgment is binding on the parties. A lawful hearing and trial are the only essential conditions for the Functus Officio. The apex court stated that to Correct, Rectify and Amend a mistake apparent from record is all there to 254(2) and that recall is alien to powers of a quasi-judicial authority like the ITAT. The apex court stated that the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. The limitations and conditions of a review are provided in Order 47 of the Civil Procedure Code. Order XLVII contains nine rules which impose some conditions for the review. The power to review is conferred by law and inherent power to review vests in court only. A Government officer has no inherent power to review his/her orders. All decrees or orders cannot be reviewed. The right of review has been conferred by Section 114 and Order 47, Rule 1 of the Code. The rule states as follows: MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 17 Any person aggrieved: by a decree or order from which an appeal is allowed but from which no appeal has been preferred. by a decree or order from which no appeal is allowed. by a decision on a reference from a court a small causes, may apply for a review of judgment to the court which passed the decree or made the order on any of the following grounds: 1. discovery by the applicant of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. 2. on account of some mistake or error apparent on the face of the record. 3. for any other sufficient reason. Discovery of new and important matter or evidence: The party seeking review must show that he exercised greatest care in adducing all possible evidence and that the new evidence is such as is relevant and that if it had been given in the suit it might possibly have altered the judgment. It is not only the discovery of new and important evidence which entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was passed, or order made. However, the said clause is not applicable to Tribunal proceedings as the Tribunal cannot bring in fresh material or evidence on to record after an order under section 254(1). Mistake or error apparent on the face of the record: It is not limited to a mistake of fact. It may be of law. Failure to consider a ruling is not such an error. It should be an error which can be seen by a mere perusal of the record without reference to any other matter. Any other sufficient reason: These words have been interpreted by their Lordships of the Judicial Committee to mean a reason sufficient on grounds at least analogous to those specified in (1) and (2). Further, the scope of section 254(2) is in line with scope of section 154, the scope of section 154 is well defined by the Hon’ble SC in [1971] 82ITR50 (SC) T.S. Balaram, Income- tax Officer v. Volkart Brothers* wherein the court has held as follows: “Section 113 of the Income-tax Act, 1961, corresponded to section 17(1) of the Indian Income-tax Act, 1922, but that section has now been omitted with effect from April 1, 1965, as a result of the Finance Act, 1965. From what has been said above, it is clear that the question whether section 17(1) of the Indian Income-tax Act, 1922, was applicable to the case of the first respondent is not free from doubt. Therefore, the Income- tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 18 into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde v. MallikarjunBhavanappa Tirumale [I960] 1 SCR 890, this court while spelling out the scope of the power of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record—see Sidhramappa AndannappaManvi v. Commissioner of Income-tax [1952] 21 ITR 333 (Bom.). The power of the officers mentioned in section 154 of the Income-tax Act, 1961, to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record." In this case it is not necessary for us to spell out the distinction between the expressions "error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. 8. Accordingly, the decision of the Honourable Supreme Court in the case of Reliance Telecom Limited reported in 133 taxmann.com 41 is squarely applicable to this case as the assessee has taken the grounds of inconsistency with the earlier decisions of the said Hon’ble ITAT, the assessee’s only argument in the case is that there was a favourable precedent in the assessee’s own case prior to the favourable precedent to revenue in the assessee’s own case, accordingly, the rule of precedent is violated. This argument of assessee does not hold water as the Hon’ble ITAT has distinguished between the opposing precedents and dismissed the appeal of the assessee. The assessee has also taken the ground that facts were not adjudicated in assessee’s favour by the Hon’ble ITAT with respect to new clients whose contracts can be considered as developers. This argument of the assessee also does not hold strength as Hon’ble ITAT has adjudicated on all facts of the case including impact of explanation on works contractors. 9. The assessee did not bring onto record any argument or document distinguishing the applicability of the decision of the Honourable Supreme Court in the case of Reliance Telecom Limited in his own case. This is because the current case is squarely covered by the Hon’ble SC’s order. 10. During the course of oral hearing, the Ld. Counsel has argued that the assessee is eligible for deduction under section 80IA(4)(i)(c) in respect of civil works including irrigation Projects and 80IA(4)(iv)(b) in respect of Electrical Projects, the Ld. Counsel has argued the applicability of the order relied upon. i.e ITA NO’s 765,740 and CO 47/H/14 dated 29.02.2016 on both the deductions. This argument of the counsel is incorrect. Para 8.1 of the said order dealt with deduction under section 80IA(4)(iv)(b) and categorically MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 19 stated that the assessee is not eligible, in the process, Hon’ble ITAT has clearly commented that precedents in favour of assessee are not applicable. In para 10 of ITA NO’s 765,740 and CO 47/H/14 dated 29.02.2016, Hon’ble ITAT has stated that assessee is eligible for deduction under section 80IA(4)(i)(c) in line with the precedents. However, the impugned order, i.e. ITA No. 1617 & 1618/HYD/2017 for AY 2013-14 and AY 2014-15 has discussed and distinguished the applicability of precedents with respect to deduction under section 80IA(4)(i)(c) by placing reliance upon decision dated 12.05.2021 in ITA No. 496/H/2018 M/s NEC NCC Maytas-JV from para 4.1 onwards, wherein the Hon’ble Tribunal has analysed the issue of allowability of deduction in the development of irrigation works and work contracts under the statutory explanation to section 80IA read along with the analysis of The 5-Judge Constitutional Bench’s Decision In CC v. Dilip Kumar (2018) 9 SCC 1 On Rules Of Interpretation in allowing deductions and exemptions. The Hon’ble bench would be conscious that the knowledge 5-Judge Constitutional Bench’s Decision In CC v. Dilip Kumar (2018) 9 SCC 1 was not available to the benefit of the Hon’ble Tribunal in deciding the previous precedents. The Hon’ble bench went on to analyse the impact of the inserted explanation to the nature and ambit of Works contract in para 6. With such a detailed application of mind by the Hon’ble Tribunal in ITA No. 1617 & 1618/HYD/2017 for AY 2013-14 and AY 2014-15, there is absolutely no scope for the assessee to file a Miscellaneous application on the nonexisting ground of inconsistency. 11. The Ld. Counsel for the assessee has placed reliance on the cases of Minnow Trading Company of ITAT Bangalore and Vijay Solvex Ltd of ITAT Jaipur about following of rule of precedent in assessee’s case. The case laws are not applicable in the current scenario as the Hon’ble ITAT has placed reliance on a decision which is favourable to revenue in dismissing the appeal of the assessee, the assessee’s only argument in the case is that there was a favourable precedent in the assessee’s own case prior to the favourable precedent to revenue in the assessee’s own case, accordingly, the rule of precedent is violated. This argument of assessee does not hold water as the Hon’ble ITAT has distinguished between the opposing precedents and dismissed the appeal of the assessee. Accordingly, there is no mistake apparent on record. Also, in the case of [2021] 128 taxmann.com 370 (Madras) before Hon’ble HIGH COURT OF MADRAS Commissioner of Income Tax, Chennai v. Sical Logistics Limited* has held as follows: Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Power of (Power of rectification) - Assessment year 2005-06 - Whether non consideration of a judgment of High Court cannot be construed as mistake as contemplated under section 254(2) - Held, yes [Paras 4,5 and 6] [In favour of revenue] 12. Further, the Ld. Counsel for the assessee has placed reliance on the case of [2007] 165 TAXMAN 307 (SC) Honda Siel Power Products Ltd which held as follows: The expression ‘rectification of mistake from the record’ occurs in section 154. It also finds place in section 254(2). The purpose behind enactment of section 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 20 instant case, the Tribunal in its order dated 10-9-2003 allowing the rectification application had given a finding that Samtel Color Ltd.’s case (supra) was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. [Para 12] ‘Rule of precedent’ is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2). When prejudice results from an order attributable to the Tribunal’s mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the Court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the instant case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. The Tribunal had acknowledged its mistake; it had accordingly rectified its order. If prejudice had resulted to the party, which prejudice is attributable to the Tribunal’s mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake. The same thing had been done in the instant case. [Para 13] For the aforestated reasons, the impugned judgment of the High Court was set aside and the order passed by the Tribunal allowing the rectification application filed by the assessee was restored. Consequently, the appeal was allowed. 13. The said case law is not applicable to the facts of the current case as in the case of Honda Siel Power Products Ltd, it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. The Tribunal had acknowledged its mistake and it had accordingly rectified its order. Therefore, the court opined that If prejudice had resulted to the party, which prejudice is attributable to the Tribunal’s mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake. 14. However, in the current case, the tribunal has considered all the precedents in the assessee’s case and has adjudicated consciously to place reliance on assesssee’s own case for AY 2010-11 vide order ITA NO’s 765,740 and CO 47/H/14 dated 29.02.2016 and decision dated 12.05.2021 in ITA No. 496/H/2018 M/s NEC NCC Maytas-JV over assessee’s own case order dated 29.02.2012 in ITA No. 347/Hyd/2008. This part is clearly discernable by the wording of the order in para 5.3 of the ITA No. 1617 & 1618/HYD/2017 for AY 2013-14. In the said para, para 8.1 of the ITA NO’s 765,740 and CO 47/H/14 dated 29.02.2016 has been reproduced which stated that the previous precedents in the MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 21 assessee’s own case are distinguishable. Accordingly, all the case laws relied upon by the assessee discuss about ITAT not considering a case law brought to its notice, whereas in the current case, ITAT has distinguished the case laws brought to its notice. Accordingly, there is no mistake apparent from record. The relevant extract is reproduced below: 15. The Ld. Counsel for the assessee has also orally argued that the issue was not debated in the succeeding years by the revenue, this stand of the assessee is incorrect as the following appeals on the same issue are pending in the Hon’ble Tribunal for adjudication in the assessee’s own case. ITA NO ASST YEAR APPEAL FILED BY ISSUE 695/H/2020 2012-13 ASSESSEE 80IA 696/H/2020 [143(3) rws 153A] 2013-14 ASSESSEE 80IA 697/H/2020 [143(3)rws153A] 2014-15 ASSESSEE 80IA 1617/H/17 [143(3)] 2013-14 ASSESSEE 80IA 1618/H/17 [143(3)] 2014-15 ASSESSEE 80IA 750/H/2020 2014-15 DEPT 80IA 751/H/2020 2015-16 DEPT 80IA 698/H/2020 2015-16 ASSESSEE 80IA 752/H/2020 2016-17 DEPT 80IA MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 22 699/H/2020 2016-17 ASSESSEE 80IA 700/H/2020 2017-18 ASSESSEE 80IA 753/H/2020 2017-18 DEPT 80IA 754/H/2020 2018-19 DEPT 80IA 701/H/2020 2018-19 ASSESSEE 80IA None of the case laws and arguments relied upon by the assessee distinguish or oppose the existing understanding about the scope and powers under section 254(2) as bound by the ruling in CIT v. Reliance Telecom Ltd. - [2021] 133 taxmann.com 41 (SC), Accordingly, as categorically established from the above submission, there is no mistake apparent from record and the current MA is liable to be quashed.” 17. We have heard the rival submissions and perused the material on record. Admittedly, there is no quarrel with regard to the order of Tribunal dt.05.12.2019 for the A.Ys. 2011-12 and 2012-13 wherein, the Tribunal has considered the contentions of the assessee herein as well as of the Revenue. In Para 6 of the said order (supra), Tribunal had reiterated the submissions of assessee. In said Para 6, the contentions of ld.AR was that for A.Ys. 2004-05 to 2009-10, the Tribunal vide order dt.29.02.2012 in ITA 347/Hyd/2008 and others had decided the issue in favour of assessee. Even, in the Paragraph 6.1 of the order of Tribunal for A.Y. 2010-11 was also reproduced, whereby the Tribunal had denied the benefit for 80IA(4)(iv)(b). However, after recording the submissions of the assessee as well as the Revenue, the Tribunal had remanded back the appeals for A.Ys. 2011-12 to 2012-13 to the file of Assessing Officer with a direction to give effect the order of the Tribunal dt. dt.29.02.2012 in ITA No.347/Hyd/2008 and others for both issues namely 80IA(4)(iv)(b) and 80IA(4)(iv)(c). MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 23 18. It is also admitted that after directions of the Tribunal issued for A.Y. 2011-12, the Revenue had filed M.A. on 05.02.2021 and the said M.A. was dismissed by the Tribunal vide a detailed order dt.15.02.2021. After dismissal of M.A, the Assessing Officer had passed consequential order for A.Y. 2011-12 and 2012-13 on 30.09.2021. From the perusal of the above, it is abundantly clear that the Revenue was all along been following the finding recording by the Tribunal in ITA No.347/Hyd/2008 and others. 19. Thus, in our view, once there is a decision of co-ordinate Bench of the Tribunal in favour of assessee from A.Ys. 2004-05 to 2009-10 and in A.Ys. 2011-12 and 2012-13, then the Tribunal has committed a mistake by not following the latest order for A.Y. 2011-12 and 2012-13. 20. Hence, there is a mistake on the part of the Tribunal in not referring the decisions of Tribunal in assessee’s own case for earlier assessment years i.e., A.Ys. 2004-05 to 2009-10 and A.Y.2011-12 and 2012-13, but also following the order of Tribunal passed for A.Y. 2010-11 only, without giving any reason. 21. With respect to the decisions of earlier bench(es) pertaining to section 80IA(4)(iv)(c), the Tribunal in the impugned decision has not recorded any finding of fact and had not adjudicated any grounds urged by the assessee. In the written submissions filed by the Revenue, the above said factual scenario had not been disputed by the Revenue. Revenue in Para 4 of its written submissions, submitted that “further, the assessee has also taken the ground that facts were not adjudicated in assessee’s favour by the Hon’ble ITAT. By no stretch of imagination MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 24 this can be called as a mistake apparent form record to invoke jurisdiction u/s 254(2) of the Act.......” 22. We may record that the Tribunal is last fact finding body and appeal to the hon’ble High Court lies on question of law only u/s 260A of the Act. If the Tribunal, by mistake failed to adjudicate the fact, then in our opinion, it is a mistake apparent from record and the order of the Tribunal suffers from said mistake which if goes remains unrectified, then it will harm the parties. Further we may point out in some cases, where the tax effect is less than threshold limit, no appeal can be filled by the department against the said mistake before High Court, therefore this power of rectification is required to exercise by the Tribunal, where it came across such mistake. The judgments relied upon by the ld.DR, nowhere deals with the above said issue and therefore, in our view, the Tribunal is within its right to correct the apparent mistake. 23. Further, the incorrect finding recorded by Tribunal whereby the Tribunal had committed mistake by recording in paragraph 6 of its impugned order that none of the previous bench(es) had considered the scope of Explanation to section 80IA. In our considered opinion, the Tribunal in its order dt.29.02.2012 in the case of assessee (in ITA No.347/Hyd/2008 and others) had considered the Explanation to section 80IA. It may fruitfully here to refer Para 28, 29, 30 of the decision dt.29.02.2012 wherein the Tribunal had extensively dealt with the scope and ambit of the amendment in the Act by the Finance Act, 2007 and 2009. Paras 28 to 30 of the order in ITA No.347/Hyd/2008 reproduced as under : MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 25 “28. The next question is to be answered is whether the assessee is a developer or mere works contractor. The Revenue relied on the amendments brought in by the Finance Act 2007 and 2009 mention that the activity undertaken by the assessee is akin to works contract and he is not eligible for deduction under section 80IA (4) of the Act. Whether the assessee is a developer or works contractor is purely depends on the nature of the work undertaken by the assessee. Each of the work undertaken has to be analyzed and a conclusion has to be drawn about the nature of the work undertaken by the assessee. The agreement entered into with the Government or the Government body may be a mere works contract or for development of infrastructure. It is to be seen from the agreements entered into by the assessee with the Government. We find that the Government handed over the possession of the premises of projects to the assessee for the development of infrastructure facility. It is the assessee's responsibility to do all acts till the possession of property is handed over to the Government. The first phase is to take over the existing premises of the projects and thereafter developing the same into infrastructure facility. Secondly, the assessee shall facilitate the people to use the available existing facility even while the process of development is in progress. Any loss to the public caused in the process would be the responsibility of the assessee. The assessee has to develop the infrastructure facility. In the process, all the works are to be executed by the assessee. It may be laying of a drainage system; may be construction of a project; provision of way for the cattle and bullock carts in the village; provision for traffic without any hindrance, the assessee's duty is to develop infrastructure whether it involves construction of a particular item as agreed to in the agreement or not. The agreement is not for a specific work, it is for development of facility as a whole. The assessee is not entrusted with any specific work to be done by the assessee. The material required is to be brought in by the assessee by sticking to the quality and quantity irrespective of the cost of such material. The Government does not provide any material to the assessee. It provides the works in packages and not as a works contract. The assessee utilizes its funds, its expertise, its employees and takes the responsibility of developing the infrastructure facility. The losses suffered either by the Govt. or the people in the process of such development would be that of the assessee. The assessee hands over the developed infrastructure facility to the Government on completion of the development. Thereafter, the assessee has to undertake maintenance of the said infrastructure for a period of 12 to 24 months. During this period, if any damages are occurred it shall be the responsibility of the assessee. Further, during this period, the entire infrastructure shall have to be maintained by the assessee alone without hindrance to the regular traffic. Therefore, it is clear that from an un-developed area, infrastructure is developed and handed over to the Government and as explained by the CBDT vide its Circular dated 18-05-2010, such activity is eligible for deduction under section 80IA (4) of the Act. This cannot be considered as a mere works contract but has to be considered as a development of infrastructure facility. Therefore, the assessee is a developer and not a works contractor as presumed by the Revenue. The circular issued by the Board, relied on by learned counsel for the assessee, clearly indicate that the assessee is eligible for deduction under section 80IA (4) of the Act. The department is not correct in holding that the assessee is a mere contractor of the work and not a developer. 29. We also find that as per the provisions of the section 80IA of the Act, a person being a company has to enter into an agreement with the Government or Government undertakings. Such an agreement is a contract and for the purpose of the agreement a person may be called as a contractor as he entered into a contract. But the word MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 26 "contractor" is used to denote a person entering into an agreement for undertaking the development of infrastructure Every agreement entered into is a contract. The word "contractor" is used to denote the person who enters into such contract. Even a person who enters into a contract for development of infrastructure facility is a contractor. Therefore, the contractor and the developer cannot be viewed differently. Every contractor may not be a developer but every developer developing infrastructure facility on behalf of the Government is a contractor. 30. We find that the decision relied on by the learned counsel for the assessee in the case of CIT vs. Laxmi civil Engineering works [supra] squarely applicable to the issue under dispute which is in favour of the assessee wherein it was held that mere development of a infrastructure facility is an eligible activity for claiming deduction under section 80IA of the Act after considering the Judgement of the Mumbai High Court in the case of ABG Heavy Engineering [supra]. The case of ABG is not the pure developer whereas, in the present case, the assessee is the pure developer. We also find that Section 80IA of the Act, intended to cover the entities carrying out developing, operating and maintaining the infrastructure facility keeping in mind the present business models and intend to grant the incentives to such entities. The CBDT, on several occasions, clarified that pure developer should also be eligible to claim deduction under section 80IA of the Act, which ultimately culminated into Amendment under section 80IA of the Act, in the Finance Act 2001, to give effect to the aforesaid circulars issued by the CBDT. We also find that, to avoid misuse of the aforesaid amendment, an Explanation was inserted in Section 80IA of the Act, in the Finance Act-2007 and 2009, to clarify that mere works contract would not be eligible for deductions under section 80IA of the Act. But, certainly, the Explanation cannot be read to do away with the eligibility of the developer; otherwise, the parliament would have simply reversed the Amendment made in the Finance Act, 2001. Thus, the aforesaid Explanation was inserted, certainly, to deny the tax holiday to the entities who does only mere works contact or sub- contract as distinct from the developer. This is clear from the express intension of the parliament while introducing the Explanation. The explanatory memorandum to Finance Act 2007 states that the purpose of the tax benefit has all along been to encourage investment in development of infrastructure sector and not for the persons who merely execute the civil construction work. It categorically states that the deduction under section 80IA of the Act is available to developers who undertakes entrepreneurial and investment risk and not for the contractors, who undertakes only business risk. Without any doubt, the learned counsel for the assessee clearly demonstrated before us that the assessee at present has undertaken huge risks in terms of deployment of technical personnel, plant and machinery, technical know-how, expertise and financial resources. Further, the order of Tribunal in the case of B.T.Patil cited supra is prior to amendment to sec 80IA(4), after the amendment the section 80IA(4) read as (i) developing or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility, prior to amendment the "or" between three activities was not there, after the amendment "or" has been inserted w.e.f. 1-4-2002 by Finance Act 2001. Therefore, in our considered view, the assessee should not be denied the deduction under section 80IA of the Act if the contracts involves design, development, operating & maintenance, financial involvement, and defect correction and liability period, then such contracts cannot be called as simple works contract to deny the deduction u/s 80IA of Act. In our opinion the contracts which contain above features to be segregated on this deduction u/s. 80-IA has to be granted and the other agreements which are pure works MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 27 contracts hit by the explanation section 80IA(13), those work are not entitle for deduction u/s 80IA of the Act. The profit from the contracts which involves design, development, operating & maintenance, financial involvement, and defect correction and liability period is to be computed by assessing officer on pro-rata basis of turnover. The assessing officer is directed to examine the records accordingly and grant deduction on eligible turnover as directed above. It is needless to say that similar view has been taken by the Chennai Bench of the Tribunal and deduction u/s. 80IA was granted in the case of M/s. Chettinad Lignite Transport Services (P) Ltd., in ITA No. 2287/Mds/06 order dated 27th July, 2007 for the assessment year 2004-05. Later in ITA No. 1179/Mds/08 vide order dated 26th February, 2010 the Tribunal has taken the same view by inter-alia holding as follows: "7. Moreover, the reasons for introducing the Explanation were clarified as providing a tax benefit because modernisation requires a massive expansion and qualitative improvement in infrastructures like expressways, highways, airports, ports and rapid urban rail transport systems. For that purpose, private sector participation by way of investment in development of the infrastructure sector and not for the persons who merely execute the civil construction work or any other work contract has been encouraged by giving tax benefits. Thus the provisions of section 80IA shall not apply to a person who executes a works contract entered into with the undertaking or enterprise referred to in the section but where a person makes the investment and himself executes the development work, he carries out the civil construction work, he will be eligible for the tax benefit under section 80IA." 31. The above order was followed in subsequent assessment years 2007-2008 & 2008-09 in ITA Nos. 1312 & 1313/Mds/2011 vide order dated 18.11.2011 in the case of the same assessee. Being so, we are inclined to partly allow the ground relating to claiming of deduction u/s. 80IA.” 24. In our considered opinion, once there are binding decisions in the case of assessee for A.Ys. 2004-05 to 2012-13, then it is required to be followed by the Tribunal and if the Tribunal on a mistaken belief had not followed the decisions, then it can be said that it is a ‘mistake apparent on the face of the record’ and in view of the above facts and circumstances, discussions and after following the decisions cited supra, in our view, Tribunal has committed a ‘mistake apparat on the face of the record’ and therefore, the order passed by the Tribunal dt.23.11.2021 is required to be recalled. We accordingly, allow the M.A.s filed by the assessee. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 28 25. So far as the contention of Revenue with regard to the terms of decision of hon’ble Supreme Court in the case of Reliance Telecom Ltd. (supra), in our view, the said decision is binding on all the Tribunals as well as the courts below. However, on perusal of the said decision, it is abundantly clear that the Tribunal cannot revisit its earlier order and go into details on merits. However, the hon’ble Supreme Court in the case of Reliance Telecom Ltd (supra) at Paras 3.1 and 3.2 has categorically held that the Tribunal has power to rectify any mistake apparent from the record only and further it held that the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CP and the Tribunal is not required to re-visit its earlier order and to go into detail on merits and the powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 26. However, in our view there is a distinction between erroneous order passed on merits and an order passed on account of mistake apparent from the record. In the present Tribunal’s order dt.23.11.2021, the Tribunal had committed various mistakes as mentioned in foregoing paras, however it can be summarized as under: (i) The Tribunal has not followed the earlier decisions in the case of assessee; (ii) The Tribunal had by mistake mentioned that the previous bench(es) has not considered the Explanation to section 80IA while deciding the case in respect of the assessee; (iii) The Tribunal has not adjudicated the facts in the present case; (iv) The Tribunal has relied upon the decision of M/s. NEC NCC MAYTAS – JV Vs. DCIT (supra) without bringing on record how the said decision is applicable in the facts of the present case and; MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 29 (v) The Tribunal committed mistake by not considering the order passed by ld.PCIT u/s 263 of the Act and subsequent order giving effect passed by the Assessing Officer for A.Y. 2011-12 and 2012-13. In our considered opinion, the Tribunal has power to rectify any mistake apparent on the face of the record and the hon’ble Supreme Court in the case of Honda Siel Power Products Ltd (supra) held that when there was a mistake, error or omission on part of the Tribunal, then it is the duty of Tribunal to set it right. 27. In the present case, since the facts have not been adjudicated, which have not been denied by the Revenue and therefore, there are mistakes apparent from record. It is settled position of law that the mistakes of the Court should not harm any person. 28. The mistake apparent from record had not been defined in the I.T Act, however there are many mistakes which had been considered by the Hon’ble Supreme Court and High Courts as mistake apparent from record. I. M/s.Universal Cold Storage Ltd Vs. DCIT (2020) 168 Taxman 178 (Mad) – When the Tribunal passed order dismissing the appeal of assessee on account of non- appearance of the assessee, then it has power to recall its order. II. Hon’ble Supreme Court of India in Assistant Commissioner of Income Tax vs. Saurashtra Kutch Stock Exchange Limited (2008) 219 CTR (SC) 90 settled long ago that non-consideration of the decision of the jurisdictional High Court /Supreme Court constitutes mistake apparent from record and is rectifiable within the meaning of section 254(2) of the Income Tax Act, 1961. III. Non-consideration of the decisions of the constitutional/writ court touching upon the issue under consideration and ignored by the Hon’ble tribunal while MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 30 adjudicating the matter in dispute, Amore Jewels (2018) 2 NYPCTR 734 (Bom) holding that non consideration of case laws cited and hence covered under s 254(2) (4) R.A. Boga vs. AAC (1977) 110 ITR 1 (P&H)(FB), IV. A mistake apparent from record means an ‘obvious or patent mistake’ or a ‘glaring and obvious mistake’. Hotly debatable issues are excluded; hardly debatable issues are included. The issue may be complicated, yet the mistake may be simple. It is a mistake apparent from record. The test is not complexity of the issue but simplicity of the mistake. V. Sun Engineering Works (P) Ltd. (1992) 198 ITR 297 (SC), "it is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration, and to treat it to be complete law declared by this Court". The Tribunal has ended up doing something which, as is the law laid down by the Hon’ble Supreme Court, is impermissible in law. That cannot but be a glaring, obvious and patent error and, accordingly, liable to be rectified under s. 254(2) of the Act. To suggest that a conscious mistake, even if that be a mistake apparent from record, cannot be rectified under s. 254(2) is somewhat devoid of logic and rationale. If a conscious mistake is a mistake apparent from record, there is no reason for not rectifying the same under the provisions of law. To err is human but there cannot be any justification for perpetuating an error. VI. In Laxmi Electronic Corporation Ltd. vs. CIT (1991) 188 ITR 398 (All) the Tribunal had omitted to consider a preliminary objection that the appeals were barred by time although the same had been urged in arguments before the Tribunal. The Court held that the proposition that a contention urged but not dealt with by the Tribunal can be taken as having been negatived is not inconsistent with the power of the Tribunal to reopen the appeal where it is brought to its notice that an important contention raised by the party was not dealt with by the Tribunal in its order. The Court held that such a power must be held to be inherent in the Tribunal since it would be a case where the party has suffered prejudice for no fault of his and on account of the mistake or error on the part of the Tribunal. It held that the failure to deal with the preliminary objection relating to the maintainability of the appeal on the ground of limitation amounted to an error apparent on the face of the record which empowered the Tribunal to reopen the appeal and rectify the mistake if it was so satisfied. MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 31 VII. In Kil Kotagiri Tea and Coffee Estates Company Ltd. vs. ITAT (1988) 174 ITR 579 the Kerala High Court held that where the Tribunal had relied on a decision of a single Judge of the Kerala High Court which was subsequently overruled the order passed by the Appellate Tribunal disclosed a mistake apparent from the record and that the Tribunal ought to have exercised its powers under Section 254(2) and rectified its order on the basis of the assessee’s application for rectification. VIII. Non consideration of a provision of law which would have material bearing on the decision is a glaring obvious and self-evident mistake apparent from the record. Such a mistake would be required to be corrected (CIT vs. Quilon Marine Produce Co. (1986) 157 ITR 448). Modu Finblo vs. 1st WTO (1995) 53 ITD 53 (Pune) (TM) ITO vs. Gilard Electronics (1986) 18 ITD 176 (JP), ACIT vs. Sornamy Alkington Ltd. (1994) 49 ITD 207 (Delhi). Similarly, non consideration of a Rule World also be rectifiable CIT vs. Ballabh Prasad Agarwalla (1997) 90 Taxman 283 (Cal.) IX. 257 ITR 440 (Raj) – CIT vs. S.S.Gupta – A finding of fact was reached against the Assessee on the basis of material which was conveyed to the Tribunal after the hearing was over without affording an opportunity to the assessee to explain the information, which information apparently vitiated the order. On a miscellaneous application filed by the assessee the Tribunal recalled its order and reheard the appeals. The High Court on an appeal preferred by the department confirmed the order of the Tribunal. X. 179 CTR 265 (SC) – Jyotsna Suri vs. ITAT – The Tribunal decided the matter on merits without considering the application for adducing additional evidence pending before it. The Assessee filed a rectification application which was rejected. The High Court while deciding the appeal on merits affirmed the view of the Tribunal and held that no application u ITR s 254(2) would lie in the circumstances. On an appeal, the Supreme Court set aside the order of the High Court and remanded the matter back to the file of the Tribunal to decide the application u ITR r 29 on merits and thereafter dispose of the appeal on merits. XI. 261 ITR 49 (Del – Seth Madanlal Modi vs. CIT – The Tribunal admittedly relied on a wrong section while passing the order on merits. The Assessee filed an application for rectification on that ground. The Tribunal upheld the application MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 32 and recalled its order. The Department went in appeal, the High Court upheld the decisions of the Tribunal inasmuch as reliance on a wrong provision of law tantamount to an error apparent on record. Also see 267 ITR 450 (Mad) Prithviraj Chohan vs. CIT. XII. Similarly, in case the Tribunal had dismissed the appeal of the assessee on account of low tax effect as per the CBDT Circular. or case of the assessee falls in any exceptions mentioned in board circular, then in our view the Tribunal has power to recall the order as the mistakes are apparat on the face of the record. XIII. Lastly, in the case of Cumbum Co-operative Town Bank Limited, Prakasam in M.A. 89/Hyd/2021 in ITA No.2040/Hyd/2018 dt. 05.05.2022, the Tribunal has recalled its order, as the Tribunal had allowed the appeal of the assessee by relying upon the wrong provisions of law. 29. In view of the above, respectfully following the decisions of hon’ble Supreme Court in the case of Honda Siel Power Products Ltd (supra) and III Member case in the case of ITO Vs. M/s. Minnow Trading Company Pvt. Ltd (supra), and Cumbum Co-operative Town Bank Limited (supra), we are of the opinion that the assessee has made out the case for recalling of the order. Accordingly, we recall the impugned order dt.23.11.2021. In view of the above we hereby direct the Registry to fix the matter for re-hearing in its due course for adjudication on merit of the appeal and grounds raised therein. Ordered accordingly. 30. In the result, the Miscellaneous Applications filed by the assessee are allowed in above terms. Order pronounced in the Open Court on 06 th May, 2022. Sd/- Sd/- (LAXMI PRASAD SAHU) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 06 th May, 2022. TYNM/sps MA Nos.58 & 59/Hyd/2022 GPVR Engineers Limited 33 Copy to: S.No Addresses 1 GVPR Engineers Limit ed, C/o. M. Anandam & Co., Chartered Accountan ts, 7A, Surya Towers, S.P. Road, Secunderabad – 500003. 2 The ACIT / DCIT, Circl e 2(2), Hyderabad. 3 CIT (A) – 2, Hyderabad. 4 Pr. CIT – 2, Hyderabad. 5 DR, ITAT Hyderabad Benches 6 Guard File