NAVEEN KUMAR MUSINIPALLY,USA V. ADIT (INT-TAXN)-1, HYDERABAD

MA 45/HYD/2025

AI Insights

The case involves Naveen Kumar Musinipally, an assessee based in the USA, who filed a Miscellaneous Application seeking to recall an earlier Tribunal order concerning the assessment year 2016-2017. The application was based on the grounds that the Tribunal had not considered several crucial case laws cited by the assessee in their appeal, which constituted a mistake apparent on record. The Tribunal acknowledged the oversight and recalled the previous order, allowing the application and directing the case to be heard again.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 397898 (ITAT-HYDERABAD)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-A
• Assessment Year: 2016-2017
• Other Referred Cases: CIT vs. Saurashtra Kutch Stock Exchange Ltd., [2008] 305 ITR 227 (SC), CIT vs. Balbir Singh Maini [2018] 12 SCC 354 (SC), Honda Siel Power Products Ltd., vs., CIT 295 ITR 466 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GURPREET SINGH
• Assessee Lawyers: KC DEVDAS

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD “A” BENCH: HYDERABAD BEFORE SHRI VIJAY PAL RAO, VICE PRESIDENT AND SHRI MANJUNATHA G, ACCOUNTANT MEMBER M.A.No.45/Hyd./2025 Arising out of ITA.No.323/Hyd./2024 - Assessment Year 2016-2017 Naveen Kumar Musinipally, USA PAN APEPM4130Q vs. The ADIT [International Taxation]-1, Hyderabad. (Applicant) (Respondent) For Assessee : CA KC Devdas For Revenue : Shri Gurpreet Singh, Sr. AR Date of Hearing : 06.06.2025 Date of Pronouncement : 06.06.2025 ORDER PER MANJUNATHA G. : By this Miscellaneous Application M.A.No.45/ Hyd./2025, the assessee seeks to recall the order of the Tribunal dated 14.11.2024 passed in ITA.No.323/Hyd./2024 by invoking the provisions of sec.254(2) of the Income Tax Act, 1961. 2. CA KC Devdas, Learned Counsel for the Assessee, submitted that, while disposing the above appeal ITA.No.323/ Hyd./2024 vide order dated 14.11.2024, the Tribunal has not at all discussed the case law relied upon by the assessee and, therefore, there is a mistake apparent on record which needs to 2 M.A.No.45/Hyd./2025 be rectified by invoking the powers of the Tribunal u/sec.254(2) of the Income Tax Act, 1961. He submitted that, it is the settled position of law that, if the Tribunal failed to address the relevant case laws relied upon by the assessee in support of his arguments, then, it is an apparent mistake on record rectifiable u/sec.254(2) of the Act as held by the Hon’ble Supreme Court in the case of CIT vs., Saurashtra Kutch Stock Exchange Ltd., [2008] 305 ITR 227 (SC). He submitted that, although, the assessee has relied upon 23 citations of various High Courts and orders of the Coordinate Benches of the Tribunal, none of the decisions were discussed in the order of the Tribunal dated 14.11.20024. Therefore, it is an apparent mistake in the order of the Tribunal. He, accordingly, pleaded that, the order passed by the Tribunal in ITA.No.323/Hyd./2024 dated 14.11.2024 may please be recalled in the interest of substantial justice. 3. Shri Gurpreet Singh, Sr. AR for the Revenue, on the other hand, relied upon the order of the Tribunal. The Learned DR further referring to the petition filed by the assessee submitted that, all the issues raised by the assessee in his petition has been addressed by the Tribunal while adjudicating the issue which is evident from the order of the Tribunal where the issue of jurisdiction of the assessee has been thoroughly 3 M.A.No.45/Hyd./2025 discussed and held that, in absence of relevant details, the jurisdiction where the assessee has his domicile will be considered for the purpose of assessment of income under the Income Tax Act, 1961. Further, the Tribunal has also addressed the issue of taxation of capital gain arising out of Joint Development Agreement [“JDA”] between the assessee and the developer and by following the decision of Hon’ble Supreme Court in the case of CIT vs., Balbir Singh Maini [2018] 12 SCC 354 (SC) has held that, capital gain arising out of transfer of property by virtue of JDA is taxable in the year in which such JDA has been executed and registered. Therefore, the petition filed by the assessee to recall the order of the Tribunal dated 14.11.2024 in ITA.No.323/Hyd./2024 is devoid of merits and should be rejected. 4. We have heard both the parties and considered the relevant contents of the Miscellaneous Application filed by the assessee in light of the order of the Tribunal dated 14.11.2024 passed in ITA.No.323/Hyd./2024. Although, the assessee has brought-out various reasons to recall the order of the Tribunal dated 14.11.2024 in ITA.No.323/Hyd./2024, but, in our considered view, all the arguments taken by the assessee in the 4 M.A.No.45/Hyd./2025 petition filed u/sec.254(2) of the Act has been addressed by the Tribunal while adjudicating the issue of tax on capital gain arising in pursuance to Joint Development Agreement [JDA] between the appellant and the developer for development of the property, except, to the extent of para-14 of the petition where the Learned Counsel for the Assessee has listed-out 23 case laws of Hon’ble Supreme Court, various High Courts and Tribunal and claimed that, none of these decisions has been considered by the Tribunal while adjudicating the issue. We find that, the assessee has filed plethora of judicial precedents including those cases referred in para-14 of the petition filed u/sec.254(2) of the Act in support of his contention, however, while adjudicating the issue, the Tribunal failed to address relevant case laws relied upon by the assessee to support his arguments. Therefore, in our considered view, non-consideration of the decisions of Hon’ble Supreme Court, Jurisdictional High Court, constitute a mistake apparent from record and is rectifiable within the meaning of sec.254(2) of the Act as held by the Hon’ble Supreme Court in the case of CIT vs., Saurashtra Kutch Stock Exchange Ltd., (supra). Similar view has been taken by the Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd., vs., CIT 295 ITR 466 (SC) where the Hon’ble Supreme Court has 5 M.A.No.45/Hyd./2025 very categorically held that, non-consideration of the decision of Coordinate Bench of the Tribunal constitute a mistake apparent on record and can be rectified u/sec.254(2) of the Act. Therefore, we are of the considered view that, there is a merit in the petition filed by the assessee u/sec.254(2) of the Act to recall the order of the Tribunal dated 14.11.2024 passed in ITA.No.323/Hyd./ 2024. Thus, we recall the order of the Tribunal dated 14.11.2024 in ITA.No.323/Hyd./2024 and allow the Miscellaneous Application 45/Hyd./2025 filed by the assessee. The Registry is directed to post the appeal for hearing in due course under due intimation to both the parties. 5. In the result, Miscellaneous Application No.45/Hyd./ 2025 of the Assessee is allowed. Order pronounced in the open Court on 06.06.2025 Sd/- Sd/- [VIJAY PAL RAO] [MANJUNATHA G] VICE PRESIDENT ACCOUNTANT MEMBER Hyderabad, Dated 06th June, 2025 VBP 6 M.A.No.45/Hyd./2025 Copy to 1. Naveen Kumar Musinipally, USA C/o. 133/4, RP Road, Secunderabad – 500 003. Telangana. 2. The ADIT [International Taxation]-1, Hyderabad. 3. The Commissioner of Income Tax [IT & TP], Hyderabad. 4. The Chief Commissioner of Income Tax (IT) (SZ), Bengaluru. 5. The DR, ITAT “A” Bench, Hyderabad. 6. Guard File. //By Order// //True Copy// "