Gutta Narsaimha Reddy, Nalgonda V. Income Tax Officer, Ward-1, Suryapet

MA 60/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4514 (ITAT-HYDERABAD)
• Duration Of Justice: 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2009-2010
• Appeal Filed On: 12-04-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T. SUNIL GOUTAM
• Section: 143(3); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “A”: HYDERABAD (THROUGH VIRTUAL CONFERENCE) BEFORE SHRI LALIET KUMAR, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER M.A. No. 60/Hyd/2022 (in ITA No. 953/H/2018 Assessment Year: 2009-10) Gutta Narasimha Reddy, Nalgonda. PAN No. ARDPG 6155 Vs. Income-tax Officer, Ward – 1, Suryapet. (Applicant) (Respondent) Assessee by: Shri J. Nagaraj Revenue by: Shri T. Sunil Goutam Date of hearing: 29/04/2022 Date of pronouncement: 05/05/2022 O R D E R PER L.P. SAHU, A.M.: This second Miscellaneous Application is filed by the assessee u/s 254(2) of the Income Tax Act seeking recall of the order of the Tribunal dated 01/07/2021 in ITA No. 953/Hyd/2018. 2. In the MA, the assessee, stated as under: “The Appellant is an individual who is in the business of job works from saw mill and also having with agricultural income assessed to tax before the Income- Tax Officer, Ward-1, Suryapet, for the Assessment Year M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 2 -: 2009-10 on 31-07-2009 by declaring Net Taxable Income Rs 158360/-, Agricultural Income Rs 275000/- and paid Self Assessment Tax Rs 1720/- by Challan Sr No. 10031 with BSR Code 0510308, Dated 27.07.2009. On 30.12.2016, The Assessing Officer made assessment order U/S 143(3) r.w.s 147 of IT Act, 1961 in a hurried manner for selected time barring cases in 2016 and without affording sufficient time to explain appellant's sources for the alleged investment in property investment with his share at Rs 24,17,633/-. Aggrieved with the said Assessment order, the appellant filed an appeal before the Commissioner of Income Tax (Appeals)-3, Hyderabad. The Learned CIT (Appeals), Vide Order in ITA No. 0441/ITOW-1/SYP/CIT(A)- 3/2016-17, dismissed the Appeal without calling appellant's immediate family members who supported with their agricultural income earned from their lands and same was adduced for evidences. In the Learned CIT (A)-3 order, Ground Numbers 2 and 4 are not adjudicated properly and rejected appellant and his immediate family member's certificates of Agricultural Income issued by the Revenue Department, Government of Telangana as follows: "THIS CERTIFICATE IS NOT VALID FOR ANY CIVIL, CRIMINAL CASES AND ANY OTHER PURPOSE EXCEPT TO OBTAIN BANK LOAN SUBJECT TO RULES AND REGULATIONS OF THE BANK." Thus aggrieved against the order passed by the Learned CIT(A)-3, Appellant again filed Appeal before this Hon’ble ITAT Hyderabad with Appeal No. 953 of 2018 reiterating same grounds and also pleading to consider his case on par with similarly disposed in ITA No. 2002/Hyd/2018 disposed on 15.11.2019 and ITA No. 1585/Hyd/2019 disposed on 25.02.2021 before this Hon'ble Tribunal, by filing a letter dated 16.09.2019 for posting along with said ITA numbers through his counsel. M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 3 -: Due to COVID-19 pandemic situation and un-served usual notice of hearings, the Ac~.1in: could not notice this Hon'ble ITAT's date of hearing for dispose in the said ITA No. 953/Hyd/2018. Where in the Hon'ble ITAT dismissed present appeal on the ground that appellant's case was not proved with ownership regarding agricultural lands per se which could rise to the income of Rs 24,17,633/- claimed as exempt u/s 10(1) of The Act, and there by no rebuttal has come from the assessee's side in the case file. On 21/10/2021, the appellant has filed M A No. 74/2021 for recalling the order in ITA No 953/Hyd/2018, Dated 01/07/2021 and this Hon'ble ITAT dismissed the said M A on 27/01/2022 as follows. "We note at the outset that our impugned order forming subject matter of instant appeal was indeed passed exparte as nobody appeared on behalf of the asessee. The fact also remains that the assessee, although claims that no notice has been received, has failed to pin point any apparent error in our order. He has mainly pleaded to have derived agricultural income from land owned and possessed by all assesses family members. There is no indication in the case records as to why the said family members have allegedly entrusted all agriculture operations in favour of assessee only. We thus observe that our exparte order may deserve to be recalled on technicality, the assessee failed to pin point any apparent mistake therein on merits so as to exercise section 254(2) rectification jurisdiction. Ordered accordingly. This assessee's Miscellaneous Application is dismissed in above terms. The appellant humbly submits that due to covid pandemic situation, could not noticed virtual hearing notice thereby resulted exparte order in the ITA No. M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 4 -: 953/Hyd/2018 and its admitted by the Hon'ble ITAT in the said M A order. It may not be an out of submission that this exparte order may be recalled on the HONOBLE APEX COURT'S COGNIZANCE FOR EXTENSION OF L1MITAION, Held in SUO MOTU WRIT PETITION (C) No 3 of 2020 in filing this second MA for recalling main ITA order on the basis evidences for proving the assessee and his family members affidavits declaring agricultural income sources for his investment to the alleged property purchase and same could not be successfully presented in the ITA and first MA though same mentioned in the facts without evidences filed properly for proving the assessee's claim of sources. Therefore, the Appellant/Petitioner here in prays that this Hon'ble ITAT, kindly recall the order of this ITAT order in ITA No. 953/HYD/2018, Dated 01/07/2021 by restoring same to consider the family member's evidences by affidavits and land holdings pass books with agricultural income certificates issued by the Tahsildar Ramannapet for assessee's support in the alleged property investment by remanding matter to the Learned ITO for verifying the submitted evidences already mentioned in the facts of the said ITA but could not attached even in first MA and kindly treat same was an omission without intentional mistake in filing said supporting attachments and pass appropriate orders in the matter in the in eres of justice.” 3. This is the second MA by the assessee. Earlier the assessee filed MA No. 74/Hyd/2021 which was dismissed by the Tribunal vide order dated 27/01/2022by observing as follows: “2. We note at the outset that our impugned order forming subject matter of instant 'appeal was indeed M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 5 -: passed exparte as nobody appeared on behalf of the assessee. The fact also remains that the assessee, although claims that no notice had been received, has failed to pin point any apparent error in our order. He has mainly pleaded to have derived agriculture income from land owned and possessed by all the assessee's family members. There is no indication in the case records as to Why the said family members have allegedly entrusted all agriculture operations in favour of the assessee only. We thus observe that our exparte order may deserve to be recalled on technicality, the assessee failed to pinpoint any apparent mistake therein on merits so as to exercise section 254 (2) rectification jurisdiction. Ordered accordingly.” 4. We have heard both the parties and perused material on record. Admittedly this is the second MA filed by the assessee which cannot be entertained u/s. 254(2) of the Act. The Tribunal has rejected the first MA filed by the assessee u/s. 254(2) of the Act on the ground that there was no mistake apparent on the face of the record in the order of the Tribunal vide order dated 27/01/2021 in M.A. No. 74/Hyd/2022. It was not open to the Tribunal to entertain the second application which was filed on the same set of facts and to recall its appellate order on the alleged premise that there was an error apparent in the order of the Tribunal. We place reliance on the judgement of Allahabad High Court in the case of CIT vs. The Chemical and Allied Products (296 ITR 297). 4.1. Further it is well settled that statutory authority cannot exercise power of review unless such power is expressly conferred. There is no express power of review M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 6 -: conferred on this Tribunal. Even otherwise, the scope of review does not extend to re-hearing of the case on merit. It is held in the case of CIT vs. Pearl Woollen Mills (330 ITR 164): "Held, that the Tribunal could not readjudicate the matter under section 254(2). It is well settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. There was no express power of review conferred on the Tribunal. Even otherwise, the scope of review did not extent to rehearing a case on the merits. Neither by invoking inherent power nor the principle of mistake of court not prejudicing a litigant nor by involving doctrine of incidental power, could the Tribunal reverse a decision on the merits. The Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed." 4.2. The powers u/s 254(2) of the Act is to rectify any mistake apparent from record against the order passed u/s 254(1) of the Act. In the present case, what the assessee sought for rectification/recall of the order against the order passed by this Tribunal while dismissing the MA of the assessee, which is not covered u/s 254(1) of the Act. Therefore, the second MA against the order of section 254(1) is not maintainable in the eyes of law and, therefore, the second MA is dismissed. M.A. No. 60//Hyd/2022 G u t t a N a r a s i m h a R e d d y , N a l g o n d a . :- 7 -: 5. In the result, the second MA filed by the assessee is dismissed in above terms. Order pronounced in the Open court on 5 th May, 2022. Pronounced in the open court on 5 th May, 2022.` Sd/- Sd/- (LALIET KUMAR) (L. P. SAHU) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 5 th May, 2021. kv Copy to : 1 Gutta Narasimha Reddy, H.No. 8-101, Ramannapet, (V&M, Telangana State 2 ITO, Ward – 1, Suryapet 3 CIT(A) – 3, Hyderabad 4 Pr. CIT - 3, Hyderabad. 5 ITAT, DR, Hyderabad 6 Guard File.