ITO (TDS),Ward-1, Kurnool V. Katepally Venkata Subramanyam , Kurnool

MA 7/Hyd/2023

AI Insights

The case involves a Miscellaneous Application filed by the Revenue seeking to recall or modify an earlier Tribunal order that granted relief from the late filing fee under section 234E of the Income Tax Act for the Assessment Years 2013-14 to 2015-16. The Revenue contended that the Tribunal had not considered the fact that the TDS statements for the relevant period were filed after the introduction of section 200A(1)(c), which allows for the charging of late filing fees. The assessee argued that the Tribunal's earlier decision was based on a correct interpretation of the law as it stood before the amendment and cited a relevant High Court decision. The Tribunal, referencing a Supreme Court decision, concluded that it lacked the authority to revisit its earlier decision on the grounds presented by the Revenue, leading to the dismissal of the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 122308 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Next Hearing Date: 16-03-2023
• Assessment Year: 2015-2016
• Appeal Filed On: 23-01-2023
• Other Referred Cases: Fatheraj Singhvi and others Vs. Union of India, CIT Vs. Reliance Telecom Ltd
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS; Set aside
• Section: 234E; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ A ‘ Bench, Hyderabad Before Before Shri Rama Kanta Panda, Accountant Member AND Shri Laliet Kumar, Judicial Member O R D E R Per Laliet Kumar, J.M. The present Miscellaneous Application is filed by the petitioner / revenue aggrieved by the order passed by the co-ordinate Bench of the Tribunal dt.19.07.2022 in ITA Nos.502 to 504/Hyd/2021 for A.Ys.2013-14 to 2015-16 seeking to recall or modify the said order u/s 254(2) of the Act. 2. Before us, ld.DR for the Revenue had submitted that in the present appeals, assessee was granted relief from the late filing fee u/s 234E of the I.T. Act. Ld. D.R. further submitted that on perusal of regular TDS statement filed by the assessee for the A.Y. 2015-16 corresponding to F.Y. 2014-15, assessee had filed TDS statement for Quarter 4 on 24.03.2006 which is after the MA No.7/Hyd/2023 (In ITA 504/Hyd/2021) Assessment Year: 2015-16 ITO(TDS), Ward-1, Kurnool. Vs. Katepally Venkata Subrahmanyam, Kurnool. PAN No.AAEHK7177E. (Petitioner/ Appellant) (Respondent) Revenue by: Sri KPRR Murthy Assessee by : Sri A. Harish Date of hearing: 17.03.2023 Date of pronouncement: 20.03.2023 M.A.No.7/Hyd/2023 2 insertion of the enabling provision in clause (c) of section 200A(1) for charging of late filing fee u/s 234E of the Act i.e., after 01.06.2015. Ld. D.R. further submitted that the hon’ble Tribunal had not considered the point that for A.Y. 2015-16 corresponding to F.Y. 2014-15, the assessee had filed TDS statement after 01.06.2015 i.e., on 24.03.2016 and wrongly gave the relief from levy of late filing fee u/s 234E of the Act and hence, the order passed by the Tribunal is required to be recalled. 3. Per contra, the ld. AR for the assessee had submitted that the TDS statement filed by the assessee for Quarter 4 on 24.03.2006 i.e., prior to 01.06.2015 and for that period there was no charging mechanism and therefore, the provisions of section 234E is not applicable and for the above said purpose, assessee had relied on the decision of Hon’ble Karnataka High Court in the case of Fatheraj Singhvi and others Vs. Union of India (2017) reported in 10 ITR-OL 509 which was duly mentioned at para 2 of the impugned order dt.19.07.2022. 3.1. Ld. AR further submitted that in the present application, the department wishes that the Tribunal should revisit the order passed by it and decide the issue in favour of it which amounts to review of its own order by the Tribunal, which is not permissible in law. Ld. AR had submitted that rectification of order either on account of fact or law is not permissible in view of the decision of Hon'ble Supreme Court in the case of CIT Vs. Reliance Telecom Ltd (2021) 133 taxmann.com 41 (SC). M.A.No.7/Hyd/2023 3 4. We have heard both the parties and perused the material available on record. The tone and tenor of the submissions made by the Revenue clearly shows that it wishes that the Tribunal may review its own order passed on 19.07.2022. However, the issue is squarely covered in favour of the assessee in view of the authoritative pronouncement by the Hon'ble Supreme Court in the case of Reliance Telecom (supra), wherein it was held that the Tribunal has limited power to recall the order. We may also draw support from the recent decision of the co-ordinate Bench of the Tribunal in the case of Syed Sikander Ali, vide M.A. No.37/Hyd/2022 order dt.29.07.2022, wherein the Tribunal has held as under:- “4. We have gone through the record in the light of the submissions made on either side. The question now that arises for our consideration is whether any error in judgment which alleged to have been the result of non-consideration of the submissions made on behalf of the assessee in the perspective in which they were projected, would constitute an error apparent on record, so as to be recalled by the Tribunal in exercise of powers under section 254(2) of the Act. 5. Under section 254(2) of the Act, the Tribunal may at any time within six months from the end of the month in which the order was passed, with a view to rectify any mistake apparent from record, amend any order passed by it under sub-section (1), and shall make such an amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. It is, therefore, incumbent upon the miscellaneous applicant to point out that there is mistake in the order that is apparent from the record. This aspect has been considered by the Hon'ble Apex Court in the case of Reliance Telecom Ltd. (supra). 6. In the case of Reliance Telecom Ltd. (supra), Hon'ble Apex Court held that in a case where a detailed order was passed by the ITAT, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act; that 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; that, therefore, as such, the order passed by the ITAT recalling its earlier order 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; M.A.No.7/Hyd/2023 4 and that, therefore, the order passed by the ITAT recalling its earlier order is unsustainable, which deserves to be set aside. It was further observed that merely because parties might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act, and the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Hon'ble Apex Court held that even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted, and if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the assessee was to prefer an appeal before the High Court. Observing so, the Hon'ble Supreme Court, in the case of Reliance Telecom Ltd. (supra), quashed the order passed by the ITAT, recalling the earlier order.” 5. In the light of the above, we are of the opinion that the present Miscellaneous Application filed by the Revenue is not maintainable. Hence, the same is dismissed. 6. In the result, the Miscellaneous Application filed by the petitioner / Revenue is dismissed. Order pronounced in the open court on 20 th March, 2023. d/- Sd/- Sd/- Sd/- (RAMA KANTA PANDA) ACCOUNTANT MEMBER (LALIET KUMAR) JUDICIAL MEMBER Hyderabad, dated 20 th March, 2023. TYNM/sps M.A.No.7/Hyd/2023 5 Copy to: S.No Addresses 1 Katepally Venkata Subrahmanyam, 40-304-7, Bellary Road, Bhagya Nagar, Kurnool – 518 004. 2 The ITO (TDS), Ward-1, Kurnool. 3 DR, ITAT Hyderabad Benches 4 Guard File //By order //