Income Tax Appellate Tribunal - Hyderabad
Devgen Seeds And Crop Technology ... vs Assistant Commissioner Of Income Tax ... on 11 November, 2022
आयकर अपील य अ धकरण , है द राबाद पीठ म
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "A", HYDERABAD
BEFORE
SHRI RAMA KANTA PANDA, ACCOUNTANT MEMBER
&
SHRI K.NARASIMHA CHARY, JUDICIAL MEMBER
व.आवे . सं / M.A. Nos. 81 & 82/Hyd/2022
(Arising out of ITA Nos. 187 & 2225/Hyd/2017 )
( नधारण वष / Assessment Years:2012-13 & 2013-14 )
Devgen Seeds and Crop Assistant Commissioner of
Technology Pvt.Ltd. Vs Income Tax, Circle-17(1)
Sy.No.64P &79P, Block 1 Hyderabad
3rd Floor, Madhapur
Hi-tech City
Hyderabad-500 081
[PAN : AACCD5732D]
(आवेदक / Applicant) ( यथ / Respondent)
नधा रती वारा / Assessee by: Shri Namin Shah, CA
राज व वारा / Revenue by: Shri Rajendra Kumar, CIT-DR
11/11/2022
सु न वाई क तार ख /Date of hearing:
घोषणा क तार ख /Pronouncement on: 11/11/2022
आदे श / ORDER
PER K. NARASIMHA CHARY, JM:
These Miscellaneous Applications are filed with a prayer to recall the common order dated 18/08/2021 passed in ITA Nos. 187 & 2225/Hyd/2017 on the plea that while disposing of the matter, the Tribunal recorded certain factually incorrect observations which led to the dismissal of the appeals of the assessee.
MA Nos.81 & 82/Hyd/2022
2. Contention of the assessee in these Miscellaneous Applications is that at paragraph No. 5.1 of the common order, it was observed by the Bench that the assessee had adopted the very SIBOR+benchmark all along in all preceding assessment years which stands accepted upto the Tribunal and, therefore, there was no merit in a different stand taken for these assessment years, just because the corresponding interest rate on the FCDs has seen an increase as compared to the earlier period.
3. It is argued by the Learned AR that for the preceding two years, the assessee did not adopt SIBOR+benchmark as is evidenced by the documents and there is no dispute that FCDs were subscribed in assessment year 2010-11. According to him in the assessment year 2011- 12, learned DRP directed the Learned Assessing Officer to adopt the interest paid to an Indian Bank for benchmarking the interest paid on FCDs and the Tribunal also observed the benchmarking had to be done by considering both internal as well as external Comparable Uncontrolled Price (CUP). He placed reliance on form 3CD and transfer pricing study report to demonstrate the same.
4. He further submitted that while passing the common order in question the Bench lost sight of the observations made for the earlier assessment years and this constitutes mistake apparent from record. 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 Co-ordinate Bench would constitute mistake and error on record under the provisions of section 254 (2) of the Income Tax Act.
5. Per contra, it is the submission of the Learned DR that the Tribunal discussed the issue at length and taken a conscious decision after an elaborate discussion on all the grounds. He submitted that error in judgment cannot be equated to the error apparent on record. He relied upon the decision of the Hon'ble Apex Court in the cases of CIT Vs. Reliance Page 2 of 7 MA Nos.81 & 82/Hyd/2022 Telecom Ltd., (2021) 133 taxmann.com 41 (SC) to buttress his argument 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, and this sort of applications to recall a well considered order is impermissible under law.
6. In reply, learned AR submitted that the decision of the Hon'ble Apex Court in the case of Reliance Telecom Ltd ( supra ) is not applicable to the facts of the present case, inasmuch as that in that case, the assessee preferred both an appeal before the Hon'ble High Court as well as the Miscellaneous Application (MA) before the Tribunal, by way of MA, assessee sought to challenge the application of Hon'ble Karnataka High Court's decision, case was re-heard by Tribunal post recalling the order and thereafter the appeal before the Hon'ble High Court was withdrawn and the Hon'ble Supreme Court did not grant an alternative remedy to the assessee to approach the Hon'ble High Court again with an appeal. He, therefore, submits that the order in question has to be recalled.
7. We have gone through the record in the light of the submissions made on either side. It could be seen from the order in question that the Tribunal noticed the elaborate submissions made on behalf of the assessee and referred to them in a detailed manner at page Nos. 2 to 7. The Tribunal also referred to the Revenue's appeal in assessee's own case for assessment year 2011-12. Further reference is made to the pin-point distinction sought to be made by the assessee in respect of the facts and order relating to the assessment year 2011-12 and also recorded that in the earlier assessment year, the Co-ordinate Bench agreed with the contentions of the assessee. The order further refers to the fact that the debentures in issue involve domestic currency only and the authorities below declined to sustain the argument of the assessee that the impugned sum pertains to the assessee's debentures was received in foreign Page 3 of 7 MA Nos.81 & 82/Hyd/2022 currency only. After referring to all these facts, the Bench considered that the assessee adopted SIBOR+benchmark.
8. On the face of this factual findings, we find it difficult to accept the submissions on behalf of the assessee that there is any error apparent on record. We are afraid that to seek recall of the order on this ground, may amount to seek review/revise the order that has decided the issue after elaborate discussion. Conscious decisions taken cannot be errors apparent on record.
9. At this juncture we deem it necessary to refer to the decision of the Hon'ble Apex Court in the case of Reliance Telecom Ltd., (supra) wherein it was 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 Page 4 of 7 MA Nos.81 & 82/Hyd/2022 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. We are not in agreement with the learned AR that the above decision has no application to the facts of the case because of the difference in facts argued by him. Culling out the ratio of a decision is not an exercise of matching the colours of either of the cases. Grain has to be separate from chaff. There may be difference in facts, but unless such facts would have made a difference in the decision of the court in the earlier case, the same does not render the decision inapplicable as a precedent. The facts distinguished by the learned AR remain insignificant insofar as the decision is concerned.
11. It is unequivocal from the decision of the Hon'ble Apex Court in the case of Reliance Telecom Ltd (supra) 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. Such a remedy cannot be granted under section 254(2) of the Act.
12. Further, in Supertech Ltd. vs Emerald Court Owner Resident Welfare Association in Miscellaneous Application No 1572 of 2021 in Civil Appeal 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 Page 5 of 7 MA Nos.81 & 82/Hyd/2022 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"]."
13. Further Hon'ble Apex Court Ghanashyam Mishra & sons Private Limited VS. Edelweiss Asset Reconstruction Company Limited & Ors 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.
14. In view of this factual and legal position, we do not see any reason to recall the above common order. Miscellaneous Applications are, accordingly, dismissed.
Order pronounced in the open court on this the 11th day of November, 2022 Sd/- Sd/-
(RAMA KANTA PANDA) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER Hyderabad, Dated: 11/11/2022 Thirumalesh, Sr.PS Copy forwarded to:
1. Devgen Seeds and Crop Technology Pvt.Ltd.,Sy.No.64P &79P, Block 1 3rd Floor, Madhapur,Hi-tech City,Hyderabad-500 081
2. Assistant Commissioner of Income Tax, Circle-17(1),Hyderabad
3. DRP-1, Bengaluru.
4.DR, ITAT, Hyderabad.
5.GUARD FILE Page 6 of 7 MA Nos.81 & 82/Hyd/2022 TRUE COPY ASSISTANT REGISTRAR ITAT, HYDERABAD Page 7 of 7