"आयरअपीलीय न्यायाधिकरण में, हैदराबाद ‘ए’ बेंच, हैदराबाद IN THE INCOME TAX APPELLATE TRIBUNAL Hyderabad ‘ A ‘ Bench, Hyderabad श्री मंजूनाथ जी, माननीय लेखा सदस्य एवं श्री रवीश सूद, माननीय न्याययक सदस्य SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, HON’BLE JUDICIAL MEMBER MA No. 80/Hyd/2025 (In आयकरअपीलसं./I.T.A.No.540/Hyd/2025) (निर्धारण वर्ा/ Assessment Year: 2015-16) Rain Cements Ltd., Hyderabad. PAN : AABCR8858F Vs. The Deputy Commissioner of Income Tax, Circle 3(1), Hyderabad. (अपीलधर्थी/ Appellant) (प्रत्यर्थी/ Respondent) करदाता का प्रतततितित्व/ Assessee Represented by : Shri Deepak Chopra, Advocate (Appeared through Hybrid Mode) राजस्व का प्रतततितित्व/ Department Represented by : Shri Abhinav Pitta, Sr. AR Dfr. सुिवाई समाप्त होिे की ततति/ Date of Conclusion of Hearing : 14.11.2025 घोषणा की तारीख/ Date of Pronouncement : 19.11.2025 O R D E R प्रयत मंजूनाथ जी./PER MANJUNATHA G. A.M. The assessee has filed the present Miscellaneous Application (in short, “M.A.”) u/s 254(2) of the Income Tax Act, 1961 (for short “the Act”) against the order of the Tribunal in ITA No.540/Hyd/2025 dated 12.09.2025 pertains to the assessment year A.Y. 2015-16. Printed from counselvise.com 2 MA 80/HYD/2025 Rain Cements 2. The relevant contents of the Miscellaneous Application filed by the assessee are reproduced as under : “2 It is respectfully submitted that palpable factual errors have been made in the impugned order, which tantamount to mistake apparent on the record. 3. The first error appears in Para 4 of the impugned order, where this Hon'ble Tribunal. has observed as under \"4... The learned CIT(A), after considering the relevant submissions of the assessee dismissed the appeal filed by the assessee without condoning the delay of 1491 days in filing the appeal on the ground that, the intimation dated 20.05.2016 has been served on the assessee by past to the address given in the return of income filed for the relevant assessment year...\" 4. The above observation is patently incorrect, since nowhere has the CIT(A) recorded the fact that the Intimation was served on the Applicant by post. That apart, this observation is not emanating out of the record and in fact, the same is contrary to the submissions made and recorded in the impugned order, which specifically records, in Para 4, that the Appellant had made a request for the Intimation on the Income Tax Business Application (\"ITBA\") portal on 24.01.2020. 5. The above error is compounded in terms of the following observations made by this Hon'ble Tribunal, again, at Para 4 of the impugned order, as under: \"4.Although, the assessee claims that, physical copy of intimation was served on the assessee, but, the intimation was not uploaded in ITBA portal, because of which, there is a delay in filing of the appeal before the learned CIT(A), is not convincing and does not come under reasonable cause for condoning the huge delay of 1491 days...\" 6. This observation, where it has been recorded that the Applicant has claimed that the physical copy of the Intimation was served on it, but the Intimation was not uploaded on the ITBA portal, is also factually incorrect. The Intimation is dated 25.03.2016, at which point in time this facility of the ITBA portal was neither functional, nor available. From where this fact has been recorded by this Hon'ble Tribunal is unclear, as no such submission could have been made. 7. In Para 6 of the impugned order, while recording the contentions of the Ld. Counsel of Applicant, it has been stated as under: \"6 Learned Counsel for the Assessee referring to intimation dated 25.03.2016 submitted that, the intimation was not served on the assessee in the ITBA portal...\" Printed from counselvise.com 3 MA 80/HYD/2025 Rain Cements 8. At the cost of repetition, as has been submitted above, in 2016, the facility of the ITBA portal was not available. 9. Further, in Para 7 of the impugned order, while recording the contentions of the Ld. Departmental Representative, it has been stated as under: \"7 Sri Madan Mohan Meena, learned Sr. AR for the Revenue, on the other hand, supporting the order of the learned CIT(A) submitted that, the return of income filed by the assessee has been processed on 25.03.2016 and the same has been physically served on the assessee to the address given in the ITR filed for the relevant assessment year and this fact has been confirmed by the Learned Counsel for the Assessee. The only argument of the Learned Counsel for the Assessee is that under sec. 143(1) has not been uploaded in the ITBA portal and because of this, the assessee could not file the appeal 10. The above is also factually incorrect as it is not home out from the record that the Intimation had been physically served on the Applicant in the address given in the Income Tax Return. Secondly, the Ld. Counsel of the Applicant never submitted that the Intimation has not been uploaded on the ITBA portal and because of this, the Applicant could not file the appeal before the CIT(A) on time. Since the ITBA portal was not operational in 2016, from where this Hon'ble Tribunal has recorded this in the impugned order is unclear and as such, it is not borne out of the record. 11. Further, in the said Para 7 of the impugned order, it has also been recorded as under: \"7... However, the fact remains that, once the intimation has been served as per sec 282(2) and Rule 127 of 1.T. Rules, 1962, then, it is a sufficient compliance of law by the Assessing Officer and the assessee ought to have file appeal on or before the due date provided under the Act.\" 12 The above is also factually incorrect, since the Intimation was issued by the CPC and not by the Assessing Officer. 13 The errors are compounded further in Para 9 of the impugned order, where this Hon'ble Tribunal has recorded a concession of the Ld. Counsel of the Applicant, that the Intimation was served on the Applicant through post at the address identified in its Income Tax Return and its only grievance is that the same was not uploaded on the ITBA portal. This is factually incorrect, as no such concession was made and the same has been wrongly recorded by this Hon'ble Tribunal. Under an assumption that the above-mentioned concession was advanced, this Hon'ble Tribunal construed the date of service of the Intimation on the Applicant as 25.03.2016, ie.. fic date of the Intimation, as opposed to 24.01.2020, Le, the date at which the Intimation was uploaded on the ITBA portal pursuant to a request being made by the Applicant. The relevant Para from the impugned order passed by this Hon'ble Tribunal, recording the afore-stated concession, is reproduced as under: Printed from counselvise.com 4 MA 80/HYD/2025 Rain Cements \"9. Admittedly, the Counsel for the Assessee made statement at Bar that, the intimation dated 25.03.2016 has been physically served on the assessee through post to the address given in the ITR Form filed for the impugned assessment year. The only grievance of the assessee is that, the intimation dated 25 03.2016 was not uploaded in the ITBA portal and only upon request by the appellant, the Assessing Officer-CPC uploaded the intimation in ITBA portal on 24.01.2020 and thus, the date of service of intimation u/sec 143(1) should be considered from 24.01.2020, hut, not from 25.03.2016 as considered by the learned CIT(A). In our considered view, there is no merit in the arguments of the Learned Counsel for the Assessee that, the date of service of intimation should be considered from 24.01.2020, because as admitted by the Counsel for the Assessee the intimation dated 25.03.2016 has been served on the assessee by post to the address given in the ITR Form filed for the impugned assessment year and in our considered view, said service of intimation is in accordance with sec 282(2) read with Rule 127 of 1.T. Rules, 1962. Once the service of intimation is as per sec. 282(2) read with Rule 127 of LT Rules, in our considered view, it is a valid service of intimation and assessee should have considered the date of service of intimation from that date for the purpose of explaining the delay in filing of the appeal before the learned CIT(A) Further, if we consider the date of intimation ie., 25.03.2016, then, there is a huge delay of 1491 days in filing the appeal before the learned CIT(A) and the same was not explained by the assessee with 'sufficient and reasonable cause. Therefore, in our considered view, there is no error in the reasons given by the learned CIT(A) to dismiss the appeal filed by the assessee for delay in filing of the appeal.” 14. In support of the contention that no such concession was given, the Affidavit of the Counsel is enclosed as ANNEXUREC. In fact, such a concession has not been recorded anywhere in the order of the CIT(A). 15. The above errors of fact and the recoding of the so-called concession has formed the basis of this Hon'ble Tribunal in dismissing the captioned appeal. Since this forms the entire basis of the impugned order, while rectifying the above errors, this Hon'ble Tribunal should recall its order. 16. It is trite law that a mistake apparent on the face of the record, for the purpose of section 254(2) of the Act, is one that is obvious and patent from the record itself. Further, recording concession that is contrary to the record, or a submission advanced by a Ld Counsel, by this Hon'ble Tribunal, being the final fact finding authority, is a mistake apparent on the face of the record, for the purpose of section 254(2) of the Act. Strength in this regard is drawn from the decisions in Shri V. Ramesh and Ors. vs. ACIT, Tax Case Appeal Nos. 227 and 228 of 2019 (Madras High Court) (annexed hereto and produced as ANNEXURE- D) and Ramjibhai K. Shiyani vs. Deputy Assistant Registrar, Income Tax Appellate Tribunal, [2014] 41 taxmann.com 159 (Gujarat High Court) (annexed hereto and produced as ANNEXURE - E). Printed from counselvise.com 5 MA 80/HYD/2025 Rain Cements 17. It is also trite that this Hon'ble Tribunal, while exercising the power under section 254(2) of the Act, can recall its order in entirety if it is satisfied that prejudice has resulted to the party, which is attributable to this Hon'ble Tribunal's mistake, error or omission and which error is a manifest error. Reliance in this regard is placed on the decision in Lachman Dass Bhatia Hingwala (P.) Ltd. vs. ACIT, [2011] 330 ITR 243 (Delhi High Court-Full Bench) (annexed hereto and produced as ANNEXURE-F) While the said judgment has been rendered by the Full Bench of the Hon'ble Delhi High Court, there is no contrary decision by the Hon'ble Jurisdictional High Court on the said issue and hence, the said decision has binding force on this Hon'ble Tribunal. 18. In view of the above, it is most humbly prayed that this Hon'ble Tribunal rectifies the order dated 12.09.2025 passed by it in the captioned appeal filed by the Applicant.” 3. The learned counsel for the assessee Shri Deepak Chopra, Advocate, referring to the petition filed by the assessee u/s 254(2) of the Act, against the order of Tribunal dated 12.09.2025 in ITA No.540/Hyd/2025 submitted that, there are certain factual errors in the order of the Tribunal in as much as the Tribunal went on the premise that, the physical copy of the order has been despatched to the assessee in the address given in ITR filed for the relevant assessment year and the said finding has been recorded on the ground that, the counsel for the assessee had made a statement at Bar that, the physical copy of the intimation dated 25.03.2016 has been physically served on the assessee through post to the address given in the ITR form. However, there was no such concession recorded by the Ld. CIT(A) in his order and the counsel for the assessee has not made any statement on this ground. To this effect, he has filed an affidavit and denied the finding recorded by the Tribunal. Since the entire finding is based on Printed from counselvise.com 6 MA 80/HYD/2025 Rain Cements the incorrect admission of the counsel for the assessee, the final finding recorded by the Tribunal while dismissing the appeal filed by the assessee constitutes a mistake apparent on record which needs to be rectified u/s 254(2) of the Income Tax Act, 1961. Therefore, he submitted that, the order of the Tribunal dated 12.09.2025 in ITA No.540/Hyd/2025 should be recalled. 4. Shri Abhinav Pitta, the learned Senior A.R. for the Revenue, on the other hand, submitted that, the arguments of the counsel for the assessee to the extent of factual mistake in the order of the Tribunal that, there was no such finding in the order of the Ld. CIT(A) on the admission of the counsel for the assessee for despatch of intimation dated 25.03.2016 to the address given in the ITR filed for the relevant assessment year is not forthcoming in the order of the Ld. CIT(A). However, the final conclusion drawn by the Tribunal on the basis of the arguments of the parties is based on the facts available on record and as per the findings recorded by the Tribunal in Para 9 of the Tribunal order, it is very clear that, the assessee could not explain the delay in filing of the appeal with relevant details. Therefore, he submitted that, there is no merit in the M.A. filed by the assessee against the order of the Tribunal and thus, the M.A. filed by the assessee may be dismissed. Printed from counselvise.com 7 MA 80/HYD/2025 Rain Cements 5. We have heard both sides and considered the relevant contents of the miscellaneous application filed by the assessee under Section 254(2) of the Income Tax Act, 1961, against the order of the Tribunal in ITA No. 540/Hyd/2025 dated 12.09.2025. We have also carefully considered the relevant arguments of the learned counsel for the assessee in light of an affidavit filed in support of its contentions and also considered the arguments of the Ld. CIT-DR present for the Revenue. We find that, the Tribunal has dismissed the appeal filed by the assessee without condoning the delay of 1,491 days in filing of the appeal before the Ld. CIT(A) on the basis of arguments advanced by the parties and also the evidences available on record. If we go by the reasons given by the Tribunal in Paras 8 to 14 of the order dated 12.09.2025 and the petition filed by the assessee under Section 254(2) of the Income Tax Act, 1961, in our considered view, the assessee seeks to review the decision given by the Tribunal in given facts and circumstances of the case, but failed to make out a case of mistake apparent on record, which can be considered under Section 254(2) of the Income Tax Act, 1961. Although the learned counsel for the assessee made arguments in light of an Affidavit that, there are certain factual errors in the order of the Tribunal, in our considered view, going by the arguments recorded from both the parties and the findings recorded in the order, the finding has emerged from the arguments and Printed from counselvise.com 8 MA 80/HYD/2025 Rain Cements facts available on record in respect of condonation of the delay in filing the appeal, and the same was not condoned for the reasons stated in the Order. Therefore, in our considered view, the present application filed by the assessee under Section 254(2) of the Income Tax Act is devoid of merit and cannot be accepted. Further, the scope of rectification under Section 254(2) is limited to the extent of rectifying any prima facie errors in the order of the Tribunal, but it cannot extend to review the decision as held by the Hon’ble Supreme Court in the case of Reliance Telecom Ltd. vs. CIT (2021) 133 taxmann.com 41 (SC), wherein it has been clearly held that powers u/s 254(2) of the Act, are only to modify/ correct any mistake apparent from the record. If assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, only remedy available to the assessee was to prefer an appeal before the Hon'ble High Court but, the finding of the Tribunal cannot be considered a mistake apparent on record which can be rectified u/s 254(2) of the Act. Therefore, we are of the considered view that, there is no merit in the application filed by the assessee under Section 254(2) of the Act, and thus, the same deserves to be dismissed. 6. In so far as various case laws relied upon by the learned counsel for the assessee, including the decision of V. Ramesh and others Vs. Printed from counselvise.com 9 MA 80/HYD/2025 Rain Cements ACIT in Tax Case Appeal Nos. 227 and 228 of 2019 of Hon’ble Madras High Court and the decision of Hon’ble Gujarat High Court in the case of Ramjibhai K. Shiyani Vs. Deputy/Assistant Registrar, ITAT, (2014) 41 taxmann.com 159, in our considered view, after perusal of the relevant facts of the case and the ratio laid down in the above cases, the above cases are not applicable to the facts of the present case and thus, are rejected. The assessee has also relied upon the decision of Hon’ble Delhi High Court in the case of Lakshman Das Bhatia Hingwala (P) Ltd. Vs. ACT (2011) 338 ITR 243 (Delhi High Court) and once again the facts of the above case are not applicable to the assessee’s case and thus, rejected. 7. In this view of the matter and considering the facts and circumstances of the case, we are of the considered view that, there is no merit in the Miscellaneous Application filed by the assessee under Section 254(2) of the Income Tax Act, 1961. Therefore, for the reasons stated in the precedent paragraphs, we dismiss the Miscellaneous Application filed by the assessee. Printed from counselvise.com 10 MA 80/HYD/2025 Rain Cements 8. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the open court on 19th November, 2025. Sd/- (श्री रवीश सूद) (RAVISH SOOD) न्यधनयक सदस्य/JUDICIAL MEMBER Sd/- (मंजूनाथ जी) (MANJUNATHA G.) लेखध सदस्य/ACCOUNTANT MEMBER Hyderabad, dated 19.11.2025. TYNM/sps आदेशकी प्रयतयलयि अग्रेयषत/ Copy of the order forwarded to:- 1. यनर्ााररती/The Assessee : Rain Cements Limited, 34 Rain Centre, Srinagar Colony, Hyderabad – 500 073, Telangana. 2. राजस्व/ The Revenue : The Deputy Commissioner of Income Tax, Circle-3(1), Hyderabad. 3. The Principal Commissioner of Income Tax, Hyderabad. 4. यवभागीयप्रयतयनयर्, आयकर अिीलीय अयर्करण, हैदराबाद / DR, ITAT, Hyderabad 5. The Commissioner of Income Tax 6. गार्ाफ़ाईल / Guard file आदेशानुसार / BY ORDER Sr. Private Secretary ITAT, Hyderabad Printed from counselvise.com "