TaxTMI 
TaxTMI 
2022 (5) TMI 1690
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....e appellant as well as the Revenue vide ITA No's 1617/Hyd/2017, ITA No.1618/Hyd/2017 and ITA No.1576/Hyd/2017 and ITA No.1577/Hyd/2017, had dismissed the appeal of the assessee and allowed the appeal in favour of the revenue. II. The Hon'ble ITAT while deciding the issue against the assessee has erred in not considering the decision of the Hon'ble Tribunal Co-ordinate Bench in the appellant's own case for the Assessment year 2004-05 to 2009-10 dated: 29-02-2012 where in the issue has been set aside to the file of AO for further verification. III. The Hon'ble ITAT in the case of the appellant in ITA No. 1017/H/2016 and 1018/H/2016 for the assessment years 2011-12 & 2012-13 on the same issue of claiming deduction u/s 80lA directed the Id. CIT(A) to follow the order of the Hon'ble ITAT dated 29.02.2012 in ITA No. 347/Hyd/2008. IV. However, for the year under consideration Hon'ble ITAT without following the precedent of the Hon'ble Tribunal Co-ordinate Bench in the appellant's own case for the Assessment Year 2004-05 to 2009-10 dated: 29.02.2012 dismissed the appeal of the assessee for the AY of 2013-14. for the AY 2013-14.....
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....tribution. It gives an impression that it is available only to those assessees, who are in the business of transmission or distribution of power. In the present case, the assessee is not in the business of transmission or distribution of power. However, Id. AR has submitted that in the case of Kinfra Exports (supra), on the similar issue, the ITAT, Cochin Bench has allowed deduction u/s 80IA(4) (iv) (b). On careful reading of the said judgment, we find that the assessee in the said case was already in the business of transmitting and distributing electricity and it had claimed deduction u/s 80IA(4)(iv)(b) by laying new network of transmission lines. In the case under consideration, it is different as the assessee is not in the line of generation & distribution of power. However, assessee could have claimed deduction u/s 80IA(4)((iv) (c). As per this section, a unit which undertakes substantial renovation on modernizing of existing network of transmission or distribution lines at any time during the period beginning on the 1^st day of April, 2004 and ending 31/03/2013, is eligible to claim the said deduction. However, the meaning of substantial renovation and modernization is explai....
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....ecord. Our attention was drawn to Paragraphs 5.1, 6.1 and 7 of the said decision dated 5/12/2019, which is to the following effect:- "5.1. Summarizing the Grounds, Ld.Counsel for the assessee submitted that Ground Nos.1 to 4 relates to allowability of the deduction u/s. 80IA(4)(iv)(b) of the Act and Ground No.5 pertains to disallowance made u/s.14A of the Act. 6. Regarding Ground Nos.1 to 4 for the AY.2011-12, covering the issues raised in the Grounds of both the appeals for both the years, Ld.Counsel for the assessee made the following written submissions, and the same are extracted as under: "Issues involved in these appeals are: Deduction under section 80IA(4)(i)(c) in respect of civil works including irrigation Projects and 80IA(4)(iv)(b) in respect of Electrical Projects 1. Assessee Appeal are in relation to disallowance of deduction under section 80IA in respect of Electrical projects u/s 80IA(4)(iv)(b) : The CIT(A) based on the appeal order of the CIT(A) & ITAT for the Assessment year 2010-11 in ITA No. 765/Hyd/2014, 740/Hyd/2014 & CO No. 47/Hyd/2014 dated 29-02-2016, differing from the earlier ITAT order in Assessee'....
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....ve observations and the detailed observations made by the CIT(A) to come to a conclusion that the assessee is not eligible to claim deduction u/s 80IA(4)(iv)(b). Accordingly, we uphold the order of the CIT(A) on this issue and dismiss the ground of appeal of assessee." We submit that the undertaking referred to in section 80IA(4)(iv) and undertaking referred to in the proviso to section 80IA(4)(iv)(b) are different and cannot be the same. The Undertaking referred to in section 80IA(4)(iv) can be confined to the power transmission or distribution undertaking whereas the undertaking referred to the proviso to this section is different. The proviso reads as under: "Provided the deduction under this section to an undertaking under sub-clause (b) shall be allowed only in relation to the profits derived from laying of such 'network of new lines for transmission or distribution." In case the undertaking involved in transmission and distribution undertakes laying of the such network of new lines will be capital and nature and cannot earn profit for such laying of new lines, therefore, there has to be another undertaking. Hence your appellant is eligible for d....
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....e claim of the deduction u/s 80IA(4)(i)(c) to the tune of Rs. 5,15,54,567/- is therefore allowed." and ITAT order at page 11 para 10.1 reads as under: "The revenue has filed an appeal u/s 260A of the Act challenging the above order of ITAT before the Hon'ble High Court. In the said order, it was held that these contracts are not in the nature of works contracts and thereby Explanation to the provisions of section 80IA(13) are not attracted. Hence, just to maintain consistency with the stand of the revenue and to keep the issue alive, AO has disallowed the deduction u/s 80IA(4)(i)(c). Apart from that there is no merit in such disallowance. However, the Id. CIT(A) has allowed assessee's claim u/s 80IA(4)(i)(c) relying on the order of the coordinate bench of this tribunal (supra), hence, we are inclined to uphold the order of CIT (A). in this regard as the order of the CIT(A) is in line with the order of ITAT." in view of the above, the Department appeals may be dismissed". 6.1. Further, relying on the decision of Hon'ble ITAT vide its order dt.29-02-2012 in ITA No.347/Hyd/2008 and others, Ld. Counsel for the assessee submitted that all these iss....
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.... the order of ld. PCIT dt.30.03.2015 for AYs. 2004-05 to 2007-08 and order given effect to by the Assessing Officer dt.30.09.2021 and lastly the dismissal order of M.A. passed by Tribunal on 15.02.2021, therefore, the order passed by Tribunal suffered from mistake which is apparent from record. 9. With respect to the second limb that whether the assessee is entitled for claiming deduction u/s 80IA(4)(i)(c) of the Act or not, ld.AR has drawn our attention to the order of Tribunal dt.23.11.2021 before us, more particularly, Paras 6 and 6.1 wherein the observations of AO and contentions of ld.AR were reproduced. It was submitted by the ld.AR that all the previous years (from A.Y. 2004-05 till A.Y 2012-13), Tribunal had granted the deduction to the assessee. 6. Second issue relates to AO's action in not allowing deduction of Rs. 10,77,41,470/- u/s. 80IA(4)(i)(c) of the Act. AO's observations are as under: "5.1. With regard to the claim of deduction u/s. 80IA(4)(i)(c) the auditor has certified the deduction at Rs. 107741470/- in Form 10CCB. It is seen that this deduction is claimed in respect of 9 projects viz. KBJNL Work, Guddadamallapur LIS, Singatlur 2nd ....
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....0.09.2013 admitting taxable income of Rs.3,89,26,93C1- after claiming deduction under section 801A of Rs. 23,22,17,489/ -. The Claim of 801A is in respect of Electrical Projects of Rs. 12,44,76,019/- and that of Irrigation projects is Rs. 10,77,41,470/- the aggregate works out Rs. 23,22,17,489/ -. The case was selected for scrutiny under CASS. The Assessment was completed in the following manner: The Assessing Officer denied deduction under section 80IA of the Income Tax Act, 1961 without proper appreciation of the facts of the case. During the course of hearing copies of all the agreements of the development work undertaken were submitted along with a detailed note was submitted. In fact in your appellants own case the Hon'ble ITAT vide its order dated 29-2-2013 in ITA No. 347/Hyd/2008 & others for AY 2003-04 to 2009-10 had allowed the deduction under section 80IA in respect of the irrigation projects as well as electrical projects. It was also submitted that new works in respect of electrical distribution lines had been undertaken on total turnkey basis which should considered separately without being prejudiced by the decision of the earlier years. The Assessing Off....
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....upra) was applicable to the present facts of the case. In fact, none of the grounds of the assessee's appeal were adjudicated. Further, there was no factual determination by the Tribunal, Hence it was submitted that non adjudication of issues/grounds on merit by the Tribunal cannot be equated with the erroneous decision on merit by Tribunal and hence, the assessee requested for recalling the order. 13. The ld.AR further submitted that the decision of Tribunal in the case of assessee for earlier assessment years is required to be followed and not following the decision of co-ordinate Bench of the Tribunal and deciding the issue against the assessee is a mistake apparent from record and in view of the decision of hon'ble Supreme Court in the case of Honda Siel Power Products Ltd Vs. CIT (2007) 165 Taxman 307 and the decision in the case of III Member Case of Bangalore ITAT in the case of ITO Vs. M/s. Minnow Trading Company Pvt. Ltd. dt.29.01.2020 (M.P Nos.182 and 183/Bang/2017 in ITA Nos.5927 and 5929/Bang/2008), Hence it was submitted that the present M.A.s are required to be recalled. 14. Lastly, ld.AR submitted that the mistake committed by the Tribunal will have impact on t....
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....aytas-JV wherein the Hon'ble Tribunal has analysed the issue of allowability of deduction in the development of irrigation works and work contracts under the statutory explanation to section 80IA. As there is a conscious appreciation of facts and diverging precedents in the case of the assessee by the Hon'ble Tribunal, the assessee has failed to establish any mistake apparent from record. Importantly, the assessee has stated that the order for Assessment year 2004-05 to 2009-10 dated: 29-02-2012 vide ITA No.1471-1487/Hyd/2017 in the assessee's own case is in his favour. However, the factual position is that in the said appeals, the issue has been set aside to the file of AO for further verification. The relevant extract of para 30 of the said order is reproduced below, which clarifies that there was no clear order in favour of the assessee: 30. We find that the decision relied on by the learned counsel for the assessee in the case of CIT vs. Laxmi civil Engineering works [supra] squarely applicable to the issue under dispute which is in favour of the assessee wherein it was held that mere development of a infrastructure facility is an eligible activity for claiming deducti....
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....eloping or (ii) operating and maintaining or (iii) developing, operating and maintaining any infrastructure facility, prior to amendment the "or" between three activities was not there, after the amendment "or" has been inserted w.e.f. 1-4-2002 by Finance Act 2001. Therefore, in our considered view, the assessee should not be denied the deduction under section 80IA of the Act if the contracts involves design, development, operating & maintenance, financial involvement, and defect correction and liability period, then such contracts cannot be called as simple works contract to deny the deduction u/s 80IA of Act. In our opinion the contracts which contain above features to be segregated on this deduction u/s. 80-IA has to be granted and the other agreements which are pure works contracts hit by the explanation section 80IA(13), those work are not entitle for deduction u/s 80IA of the Act. The profit from the contracts which involves design, development, operating & maintenance, financial involvement, and defect correction and liability period is to be computed by assessing officer on pro-rata basis of turnover. The assessing officer is directed to examine the records accordingly and ....
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....lusion. It is always endeavour of Tribunal that while passing order it considers all arguments as well as written synopsis submitted by parties Madireddy Venkat Reddy [2013] 38 taxmann. com 60 (Hyderabad - Trib.) 254(2) Power to rectify a mistake under section 254(2) cannot be used for recalling entire order Vertex Homes (P.) Ltd [2014] 42 taxmann. com 445 (Hyderabad - Trib.) 254(2) Power to rectify a mistake under section 254(2) cannot be used for recalling entire order as it would amount to review which is beyond 5. The existing understanding about the scope and powers under section 254(2) ae bound by the ruling in CIT v. Reliance Telecom Ltd. - [2021] 133 taxmann.com 41 (SC), Hon'ble SC has held that the order passed by the ITAT recalling its earlier order is beyond the scope and ambit of the powers under section 254(2). In exercise of powers under section 254(2), the ITAT may amend any order passed by it to rectify any mistake apparent from the record only. The Tribunal cannot revisit its earlier order and go into detail on merits. The powers under section 254(2) are only to correct and/or rectify the mistake apparent from the record. M....
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.... the powers under section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. The limitations and conditions of a review are provided in Order 47 of the Civil Procedure Code. Order XLVII contains nine rules which impose some conditions for the review. The power to review is conferred by law and inherent power to review vests in court only. A Government officer has no inherent power to review his/her orders. All decrees or orders cannot be reviewed. The right of review has been conferred by Section 114 and Order 47, Rule 1 of the Code. The rule states as follows: Any person aggrieved: by a decree or order from which an appeal is allowed but from which no appeal has been preferred. by a decree or order from which no appeal is allowed. by a decision on a reference from a court a small causes, may apply for a review of judgment to the court which passed the decree or made the order on any of the following grounds: 1. discovery by the applicant of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made. ....
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....hich can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde v. MallikarjunBhavanappa Tirumale [I960] 1 SCR 890, this court while spelling out the scope of the power of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record-see Sidhramappa AndannappaManvi v. Commissioner of Income-tax [1952] 21 ITR 333 (Bom.). The power of the officers mentioned in section 154 of the Income-tax Act, 1961, to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record." In this case it is not necessary for us to spell....
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....stated that assessee is eligible for deduction under section 80IA(4)(i)(c) in line with the precedents. However, the impugned order, i.e. ITA No. 1617 & 1618/HYD/2017 for AY 2013-14 and AY 2014-15 has discussed and distinguished the applicability of precedents with respect to deduction under section 80IA(4)(i)(c) by placing reliance upon decision dated 12.05.2021 in ITA No. 496/H/2018 M/s NEC NCC Maytas-JV from para 4.1 onwards, wherein the Hon'ble Tribunal has analysed the issue of allowability of deduction in the development of irrigation works and work contracts under the statutory explanation to section 80IA read along with the analysis of The 5-Judge Constitutional Bench's Decision In CC v. Dilip Kumar (2018) 9 SCC 1 On Rules Of Interpretation in allowing deductions and exemptions. The Hon'ble bench would be conscious that the knowledge 5-Judge Constitutional Bench's Decision In CC v. Dilip Kumar (2018) 9 SCC 1 was not available to the benefit of the Hon'ble Tribunal in deciding the previous precedents. The Hon'ble bench went on to analyse the impact of the inserted explanation to the nature and ambit of Works contract in para 6. With such a detailed application of mind by the....
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....judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under section 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. [Para 12] 'Rule of precedent' is an important aspect of legal certainty in rule of law. That principle is not obliterated by section 254(2). When prejudice results from an order attributable to the Tribunal's mistake, error or omission, then it is the duty of the Tribunal to set it right. Atonement to the wronged party by the Court or Tribunal for the wrong committed by it has nothing to do with the concept of inherent power to review. In the instant case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinate Bench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. Th....
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....s also orally argued that the issue was not debated in the succeeding years by the revenue, this stand of the assessee is incorrect as the following appeals on the same issue are pending in the Hon'ble Tribunal for adjudication in the assessee's own case. ITA NO ASST YEAR APPEAL FILED BY ISSUE 695/H/2020 2012-13 ASSESSEE 80IA 696/H/2020 [143(3) rws 153A] 2013-14 ASSESSEE 80IA 697/H/2020 [143(3)rws153A] 2014-15 ASSESSEE 80IA 1617/H/17 [143(3)] 2013-14 ASSESSEE 80IA 1618/H/17 [143(3)] 2014-15 ASSESSEE 80IA 750/H/2020 2014-15 DEPT 80IA 751/H/2020 2015-16 DEPT 80IA 698/H/2020 2015-16 ASSESSEE 80IA 752/H/2020 2016-17 DEPT 80IA 699/H/2020 2016-17 ASSESSEE 80IA 700/H/2020 2017-18 ASSESSEE 80IA 753/H/2020 2017-18 DEPT 80IA 754/H/2020 2018-19 DEPT 80IA 701/H/2020 2018-19 ASSESSEE 80IA None of the case laws and arguments relied upon by the assessee distinguish or oppose the existing understanding about the scope and powers under section 254(2) as bound by the ruling in CIT v. Reliance Telecom Ltd. - [2021]....
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....he decisions of earlier bench(es) pertaining to section 80IA(4)(iv)(c), the Tribunal in the impugned decision has not recorded any finding of fact and had not adjudicated any grounds urged by the assessee. In the written submissions filed by the Revenue, the above said factual scenario had not been disputed by the Revenue. Revenue in Para 4 of its written submissions, submitted that "further, the assessee has also taken the ground that facts were not adjudicated in assessee's favour by the Hon'ble ITAT. By no stretch of imagination this can be called as a mistake apparent form record to invoke jurisdiction u/s 254(2) of the Act......." 22. We may record that the Tribunal is last fact finding body and appeal to the hon'ble High Court lies on question of law only u/s 260A of the Act. If the Tribunal, by mistake failed to adjudicate the fact, then in our opinion, it is a mistake apparent from record and the order of the Tribunal suffers from said mistake which if goes remains unrectified, then it will harm the parties. Further we may point out in some cases, where the tax effect is less than threshold limit, no appeal can be filled by the department against the said mistake before ....
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....e public caused in the process would be the responsibility of the assessee. The assessee has to develop the infrastructure facility. In the process, all the works are to be executed by the assessee. It may be laying of a drainage system; may be construction of a project; provision of way for the cattle and bullock carts in the village; provision for traffic without any hindrance, the assessee's duty is to develop infrastructure whether it involves construction of a particular item as agreed to in the agreement or not. The agreement is not for a specific work, it is for development of facility as a whole. The assessee is not entrusted with any specific work to be done by the assessee. The material required is to be brought in by the assessee by sticking to the quality and quantity irrespective of the cost of such material. The Government does not provide any material to the assessee. It provides the works in packages and not as a works contract. The assessee utilizes its funds, its expertise, its employees and takes the responsibility of developing the infrastructure facility. The losses suffered either by the Govt. or the people in the process of such development would be that ....
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.... that mere development of a infrastructure facility is an eligible activity for claiming deduction under section 80IA of the Act after considering the Judgement of the Mumbai High Court in the case of ABG Heavy Engineering [supra]. The case of ABG is not the pure developer whereas, in the present case, the assessee is the pure developer. We also find that Section 80IA of the Act, intended to cover the entities carrying out developing, operating and maintaining the infrastructure facility keeping in mind the present business models and intend to grant the incentives to such entities. The CBDT, on several occasions, clarified that pure developer should also be eligible to claim deduction under section 80IA of the Act, which ultimately culminated into Amendment under section 80IA of the Act, in the Finance Act 2001, to give effect to the aforesaid circulars issued by the CBDT. We also find that, to avoid misuse of the aforesaid amendment, an Explanation was inserted in Section 80IA of the Act, in the Finance Act-2007 and 2009, to clarify that mere works contract would not be eligible for deductions under section 80IA of the Act. But, certainly, the Explanation cannot be read to do awa....
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....-rata basis of turnover. The assessing officer is directed to examine the records accordingly and grant deduction on eligible turnover as directed above. It is needless to say that similar view has been taken by the Chennai Bench of the Tribunal and deduction u/s. 80IA was granted in the case of M/s. Chettinad Lignite Transport Services (P) Ltd., in ITA No. 2287/Mds/06 order dated 27th July, 2007 for the assessment year 2004-05. Later in ITA No. 1179/Mds/08 vide order dated 26th February, 2010 the Tribunal has taken the same view by inter-alia holding as follows: "7. Moreover, the reasons for introducing the Explanation were clarified as providing a tax benefit because modernisation requires a massive expansion and qualitative improvement in infrastructures like expressways, highways, airports, ports and rapid urban rail transport systems. For that purpose, private sector participation by way of investment in development of the infrastructure sector and not for the persons who merely execute the civil construction work or any other work contract has been encouraged by giving tax benefits. Thus the provisions of section 80IA shall not apply to a person who executes a works ....
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....aras, however it can be summarized as under: (i) The Tribunal has not followed the earlier decisions in the case of assessee; (ii) The Tribunal had by mistake mentioned that the previous bench(es) has not considered the Explanation to section 80IA while deciding the case in respect of the assessee; (iii) The Tribunal has not adjudicated the facts in the present case; (iv) The Tribunal has relied upon the decision of M/s. NEC NCC MAYTAS - JV Vs. DCIT (supra) without bringing on record how the said decision is applicable in the facts of the present case and; (v) The Tribunal committed mistake by not considering the order passed by ld.PCIT u/s 263 of the Act and subsequent order giving effect passed by the Assessing Officer for A.Y. 2011-12 and 2012-13. In our considered opinion, the Tribunal has power to rectify any mistake apparent on the face of the record and the hon'ble Supreme Court in the case of Honda Siel Power Products Ltd (supra) held that when there was a mistake, error or omission on part of the Tribunal, then it is the duty of Tribunal to set it right. 27. In the present case, since the facts have not been adjudicated, w....
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....ied under s. 254(2) is somewhat devoid of logic and rationale. If a conscious mistake is a mistake apparent from record, there is no reason for not rectifying the same under the provisions of law. To err is human but there cannot be any justification for perpetuating an error. VI. In Laxmi Electronic Corporation Ltd. vs. CIT (1991) 188 ITR 398 (All) the Tribunal had omitted to consider a preliminary objection that the appeals were barred by time although the same had been urged in arguments before the Tribunal. The Court held that the proposition that a contention urged but not dealt with by the Tribunal can be taken as having been negatived is not inconsistent with the power of the Tribunal to reopen the appeal where it is brought to its notice that an important contention raised by the party was not dealt with by the Tribunal in its order. The Court held that such a power must be held to be inherent in the Tribunal since it would be a case where the party has suffered prejudice for no fault of his and on account of the mistake or error on the part of the Tribunal. It held that the failure to deal with the preliminary objection relating to the maintainability of the appea....
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....merits. XI. 261 ITR 49 (Del - Seth Madanlal Modi vs. CIT - The Tribunal admittedly relied on a wrong section while passing the order on merits. The Assessee filed an application for rectification on that ground. The Tribunal upheld the application and recalled its order. The Department went in appeal, the High Court upheld the decisions of the Tribunal inasmuch as reliance on a wrong provision of law tantamount to an error apparent on record. Also see 267 ITR 450 (Mad) Prithviraj Chohan vs. CIT. XII. Similarly, in case the Tribunal had dismissed the appeal of the assessee on account of low tax effect as per the CBDT Circular. or case of the assessee falls in any exceptions mentioned in board circular, then in our view the Tribunal has power to recall the order as the mistakes are apparat on the face of the record. XIII. Lastly, in the case of Cumbum Co-operative Town Bank Limited, Prakasam in M.A. 89/Hyd/2021 in ITA No.2040/Hyd/2018 dt. 05.05.2022, the Tribunal has recalled its order, as the Tribunal had allowed the appeal of the assessee by relying upon the wrong provisions of law. 29. In view of the above, respectfully following the decision....