NEC-NCC-MAYTAS JV, Hyderabad V. Dy. Commissioner of Income Tax , Circle-6(1), Hyderabad

MA 97/Hyd/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0699 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB-B
• Next Hearing Date: 13-10-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 26-05-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Period of limitation; Time period of passing order; Set aside
• Section: 254(2)

Judgement Text

आयकर अपीलीय अधिकरण, हैदराबाद पीठ में IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES “B”, HYDERABAD BEFORE SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER & SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER वि.आिे.सं / M.A. Nos. 97, 98, 99, 100, 101, 102, 103, 104 & 105/HYD/2022 (Arising out of ITA Nos. 496/H/18, 430, 431 & 432/H/16, 2137/H/17, 1129, 1130, 1131 & 1132/H/18) निर्धारण िर्ा / Assessment Years: 2006-07, 2007-08, 2008-09, 2009-10, 2010-11, 2011-12, 2012-13, 2013-14 & 2014-15 M/s. NEC NCC MAYTAS JV, Hyderabad [PAN: AAAAN3690E] Vs Dy. Commissioner of Income Tax, Circle-6(1), Hyderabad / Asst. Commissioner of Income Tax, Circle-6(1), Hyderabad / Income Tax Officer, Ward-6(1), Hyderabad (आिेदक / Applicant) (प्रत्‍यर्थी / Respondent) निर्धाररती‍द्िधरध/Assessee by: Shri Pawan Kumar Chakrapani, AR रधजस्‍ि‍द्िधरध/Revenue by: Shri Kumar Aditya, DR स ु ििधई‍की‍तधरीख/Date of hearing: 14/10/2022 घोर्णध की‍तधरीख/Pronouncement on: 17/10/2022 आदेश / ORDER PER K. NARASIMHA CHARY, JM: All these Miscellaneous Applications are filed with a prayer to recall the common order dated 12/5/2021 passes in ITA Nos. 430 to 432 /Hyd/ 2016, 2137 /Hyd/ 2017 and 496 & 1129 to 1132/Hyd/ 2018 on the plea Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 2 of 8 that certain amounts were not educated in the appeals while passing the said order. 2. At the outset, Ld. AR submitted that the common order was passed on 12/5/2021, appeal had to be filed on or before 30/11/2021 but the same could not be filed before 27/5/2022 due to prevailing covid pandemic situation. It could be seen from the record that there is a delay in preferring these appeals and the reason attributed for the delay in filing the appeals to the pandemic. As a matter of fact, though the learned DR does not concede to condone the delay, there is no denial of the fact that the Hon'ble Supreme Court in the Suo Motu proceedings in the case of M.A.No. 21/2022 in M.A.No. 665/2021 in SMW(C) No.3 of 2020 by order dated 10/01/2022 held that in cases, where the limitation would have expired during the period between 15/03/2020 and 28/02/2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022, and in the event of actual balance period of limitation remaining with effect from 01/03/2022 is greater than 90 days, that longer period shall apply. Since the date of impugned orders under these MAs is 12/5/2021, these MAs, filed on 27/5/2022 shall be treated as filed within the period of limitation. We, therefore, now shall proceed to hear the MAs. 3. Ld. AR submitted that the assessee challenged the orders passed by the learned Commissioner of Income Tax (Appeals)-12, Hyderabad for the assessment year 2006-07, learned Commissioner of Income Tax (Appeals)- 9, Hyderabad for the assessment years 2007-08 to 2010-11 and learned Commissioner of Income Tax (Appeals)-6, Hyderabad for the assessment years 2011-12 to 2014-15. According to him while disposing of the appeals by way of common order, certain grounds missed the attention of the Bench and therefore, the common order needs to be recalled. He submitted that, insofar as this miscellaneous applications are concerned, the Bench failed to consider the grounds relating to the findings of the first Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 3 of 8 appellate authority, challenged by the assessee touching the aspects of, the 1 st appellate authority,- i. failing to notice that the contract was awarded for development of the infrastructure facility to the assessee, and not to the members; ii. improperly assuming the assessee to be a contractor and not a developer of the infrastructure facility depending upon the nomenclature adopted in the agreement between the irrigation Department and the assessee; iii. wrongly holding that the assessee is only a paper entity; and iv. improperly holding that the decisions in the case of sushi high-tech construction Pvt. Ltd passed by a coordinate Bench is not applicable. 4. He further submitted that during the course of hearing in the appeals Ld. AR brought to the notice of the Bench the decision in M/s GVPR Engineers Ltd vs. ACIT in ITA No. 347 /Hyd/ 2008 disposed of by a common order dated 29/2/2012 in support of his case but the Bench did not consider the same inadvertently while disposing of the appeal. His submission is that, all the above aspects have a bearing on the outcome of the appeals and in as much as the above aspects missed the attention of the Bench, the common order dated 12/5/2021 needs to be recalled and heard afresh. He placed reliance on the decision of the Hon’ble Apex Court in the case of ACIT vs. Saurashtra Kutch stock exchange Ltd 305 ITR 227 in support of his contention that non-application of the decision of the coordinate Bench would constitute mistake and error on record are minimal under the provisions of section 254 (2) of the Income Tax Act, 1961 (for short “the Act”). 5. Per contra, it is the submission of the Ld. DR that the view taken by the Tribunal in the case of GVPR engineers Pvt. Ltd is in conflict with the decisions of the Hon’ble Apex Court and the jurisdictional High Court and it cannot be treated as a binding precedent. He further submitted that none of the decisions relied upon by the assessee declared that he is a Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 4 of 8 works contractor or a person who did not execute the work has to be granted deduction under section 80 IA (4) of the Act and as a matter of fact all the additions were duly considered by the Tribunal while passing the order as is evident from para No. 18 of the order. He further submits that in the 1 st round of litigation there was a specific direction to the learned Assessing Officer to examine the aspect of the work that was actually carried out by the assessee, but the assessee failed to prove the same before the learned Assessing Officer, and, therefore, it is not open for the assessee to press into service so many grounds and to say that some of the grounds missed adjudication. According to the Ld. DR there is an elaborate discussion on all the grounds, but in a consolidated way, and since the matters were disposed of after considering the facts in detail and elaborate discussion on all issues as evident from page numbers 8 to 17 of the order in question. He relied upon the decision of the Hon’ble Apex Court in the cases of CIT Vs. Reliance Telecom Ltd., (2021) 133 taxmann.com 41 (SC). 6. We have gone through the record in the light of the submissions made on either side. It could be seen from the record that the common order in ITA No. 496/Hyd/2018 and batch was passed on 12/05/2021. The Bench referred to the orders of the authorities below in a very extensive manner, and decided issue relating to the eligibility of the assessee to claim the deduction under section 80-IA of the Act in the light of explanation (c) and also sub-section (4) thereof with reference to the case law and reached a conclusion that the assessee executed the work as work contract only and, therefore, not entitled to the deduction. The Bench also considered the inter play between section 80-IA(4) and explanation to section 80-IA of the Act involving execution of works contract and gave a finding as a matter of fact. In the order, it is also observed that the assessee has merely performed a works contract and its retention money or the so called performance guarantee only gave an assurance to the irrigation department that it had carried out the corresponding construction etc., as Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 5 of 8 per the specified design norms than incurring any business risk. The sum and substance of the finding in the said order is that the assessee had first of all been paid mobilization advances by the State Government’s departments on periodical basis and then only executed the corresponding lift irrigation project works contract followed by its yet another claim of section 80-IA deduction. 7. Further, it could be seen that while adverting to the order dated 08/03/2013 in ITA No. 517/Hyd/2010 in paragraph No. 2 of the order, the Tribunal noticed that the assessee has been relying on the decision of a Co-ordinate Bench GVPR Engineers Limited Vs. ACIT in ITA Nos. 347/Hyd/2008 and 17 other appeals dated 29/02/2012, decision of Chennai Bench in ACIT Vs. Chttinad Lignite Transport Services (P) Ltd., in ITA Nos. 1312 and 1313/Hyd/2011 for the assessment years 2007-08 and 2008-09, dated 18/11/2011, ACIT Vs. R.R. Constructions in ITA No. 2061/Mad/2010 for the assessment year 2007-08, dated 03/10/2011 and order of Jaipur Bench in the case of Om Metals Infra Projects Limited Vs. CIT in ITA Nos. 722 and 723/JP/2008 for the assessment years 2003-04 and 2004-05, dated 31/12/2008 etc. Further, the decision in M/s. Sushee Hi Tech Construction Private Limited Vs. DCIT was also referred by the Bench in the first round of litigation and was before the Bench while passing this order dated 12/05/2021. 8. On the face of this factual findings, we find it difficult to accept the submissions on behalf of the assessee that any particular ground relating to the nature of work executed by the assessee or to the finding of the learned CIT(A) in holding that the decision in M/s. Sushee Hi Tech Construction Private Limited was not applicable to the facts of the case, is yet to be considered by recalling the order. In our opinion, the entire issue is decided in a holistic way without any specific reference to any of the grounds and, therefore, it is difficult to say that a particular ground is not adjudicated specifically. We are afraid that to seek recall of the order on Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 6 of 8 this ground, may amount to seek review/revise the order that has decided the issue comprehensively. 9. Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) 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; 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. 10. In Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 7 of 8 No 5041 of 2021 by order dated 04/10/2021 Hon'ble Apex Court observed that,- “12 The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [“Quando aliquid prohibetur ex directo, prohibetur et per obliquum”].” 11. Further Hon'ble Apex Court in IA No. 76416/2021 (M.A. No.1166 of 2021) by order dated 17/8/2022 deprecated the growing tendency of indirectly seeking review of the orders of the Court by filing applications either seeking modification or clarification of the orders. 12. In view of this factual and legal position, we do not see any reason to recall the common order dated 12/05/2021 in ITA No. 496/Hyd/2018 and others. All the Miscellaneous Applications are accordingly dismissed. Order pronounced in the open court on this the 17 th day of October, 2022 Sd/- Sd/- (RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 17/10/2022 TNMM Batch of Miscellaneous Applications in M/s. NEC NCC MAYTAS - JV Page 8 of 8 Copy forwarded to: 1. M/s. NEC NCC MAYTAS JV, VI-1, 6-3-652, Dhruvatara Apartments, Somajiguda, Hyderabad. 2. Dy.Commissioner of Income Tax, Circle-6(1), Hyderabad. 3. Asst.Commissioner of Income Tax, Circle-6(1), Hyderabad. 4. Income Tax Officer, Ward-6(1), Hyderabad. 5. CIT(Appeals)-9, 6, & 12, Hyderabad. 6. Pr.CIT, 6, & 12, Hyderabad. 7. DR, ITAT, Hyderabad 8. GUARD FILE TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD