Case Law Details
Technip India Ltd. Vs. Asst. CIT (ITAT Chennai)
The words used in section 254(2) are ‘shall make such amendment, if the mistake is brought to its notice’. Clearly, if there is a mistake, then an amendment is required to be carried out in the original order to correct that particular mistake. The provision does not indicate that Tribunal can recall the entire order and pass a fresh decision. That would amount to a review of the entire order and that is not permissible under Income Tax Act. The power to rectify a mistake under section 254(2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the Income Tax Act. Thus, what it could not do directly could not be allowed to be done indirectly. The Tribunal meticulously mentioned arguments of assessee’s counsel, the points raised, relevant case-law relied on by the assessee and after considering the arguments of the assessee’s counsel passed the order. As such, the assessee wants to review the order of the Tribunal in the instant case under section 254(2) of the Act which is not permissible under ITAT Rules. After considering the totality of facts and the circumstances of the case, we are of the view that the arguments by the learned AR of the assessee are devoid of any merit and hence the same are rejected.
Full Text of the ITAT Order is as follows:-
By these Miscellaneous Petitions, the assessee seeks recall of the order of the Tribunal in ITA Nos. 1330, 1331 & 1333/Mds/2015, date 22-7-2016.
2. The learned AR submitted that the assessee came in appeal before the Tribunal and raised various grounds. As far as the issue of dis allowance under section 40(a)(i) on bandwidth connectivity charges for non-deduction of TDS from the said payment is concerned, the learned AR submitted that the Tribunal vide para 8.2 has dismissed the contention of the assessee relying on the decision of the Madras High Court in the case of Verizon Communications Singapore Pte Ltd. v. ITO (2014) 361 ITR 575 (Mad). Further, the learned AR submitted that the Madras High Court and the Tribunal has applied the Explanation (vi) to section 9(1) which was introduced in 2012 with effect from 1-6-1976. Even though such retrospective amendment will be applicable in the case of non-resident assessee, as in the case of Verizon Communications Singapore Pte Ltd. (supra) before the Jurisdictional High Court, the same cannot be applied to the case of the deductor/payer, who could not anticipate such amendment for deduction of tax at source and hence cannot be considered as assessee- in-default. Therefore, according to him, dis allowance under section 40(a)(i) of the Act cannot be made for non-deduction of tax at source from payment for bandwidth charges.
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