DCIT, NEW DELHI V. SH. SHYAM SUNDER KHEMKA, NEW DELHI

MA 308/DEL/2017

AI Insights

The case involves a Miscellaneous Application filed by the Revenue against an earlier Tribunal order that allowed a deduction under Section 80IC of the Income Tax Act, 1961, for the Assessment Year 2009-10. The Revenue contended that the Tribunal had overlooked the provisions of Section 80AC in its earlier decision. However, the Tribunal dismissed the application due to the belated filing, emphasizing that it could not extend the statutory time limit for filing such applications as prescribed under Section 254(2) of the Act.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 712871 (ITAT-DELHI)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Assessment Year: 2009-2010
• Other Referred Cases: Ram Baburao Salve vs AO (Mum.), Infantry Security and Facilities through, Proprietor Tukaram M. Surayawanshi vs ITO, Mal Winder Singh vs UOI, DCIT vs Smt. RenudeviNachani, Ms. Shamsunissa Begum vs DCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY TRIPATHI

Judgement Text

"1 MA No. 308/Del/2017 (ITA No. 5378/Del/2013) A.Y. 2009-10 DCIT v. Shyam Sunder Khemka IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “G” NEW DELHI BEFORE SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER M.A No. 308/Del/2017 (Arising out of ITA No.5378/Del/2013) Asstt. Yr. 2009-10 DCIT, Circle-5(1), New Delhi. v. Sh. Shyam Sunder Khemka, E-292, Sarita Vihar, New Delhi. \u0001थायीलेखासं./जीआइआरसं./PAN/GIR No: AANPK 9254 H Applicant .. Respondent Assessee : Sh. Deepesh Garg, Adv.; & Sh. Saksham Agarwal, CA Department by : Sh. Sanjay Tripathi, Sr. DR Date of Hearing 25.07.2025 Date of Pronouncement 30.07.2025 O R D E R PER RAMIT KOCHAR, AM: This Miscellaneous Application (MA) bearing No. 308/Del/2017 has been filed by the Revenue on 01st May 2017 ,against Tribunal’s order dated 29.07.2016 passed in ITA No. 5378/Del/2013 for A.Y. 2009-10, stating that a mistake has Printed from counselvise.com 2 MA No. 308/Del/2017 (ITA No. 5378/Del/2013) A.Y. 2009-10 DCIT v. Shyam Sunder Khemka crept in the order of the Tribunal wherein the provisions of Section 80AC has not been considered by the Tribunal, while allowing deduction u/s80IC. 2. At the outset ld. Counsel for the assessee pointed out before the Bench that this MA has been filed belatedly by the Revenue beyond the time limit prescribed u/s 254(2) of the Act ,and the Tribunal has no power to condone the delay.It was submitted that the appellate order in ITA No. 5378/Del/2013 was passed by the Tribunal on 29.07.2016 ,and the MA ought to have been filed on or before 31.01.2017 as provided u/s 254(2), however the MA has been filed on 1.5.2017. Ld. Counsel for the assessee has placed on record two appellate orders of the Delhi-Tribunal viz. order in MA No. 374/Del/2024 dated 4.6.2025, as well order in MA No. 18/Del/2023 dated 21.03.2025, wherein the Tribunal has held that the MA ought to have been filed within six months from the end of the month in which the order sought to be rectified was passed by the Tribunal. The relevant observation of Tribunal in MA No. 18/Del/2023 is reproduced hereunder: “The Revenue has filed Misc. Application dated 27.12.2022 under s. 254(2) of the Income Tax Act, 1961 (\"the Act\") seeking to challenge the appellate order passed by the Tribunal in ITA No.91/Del/2022 order dated 21.03.2022 for the Assessment Year 2019-20. 2. As On perusal of the record and as surfaced in the course of hearing, the Revenue in the instant case has filed Misc. Application belatedly. As transpired in the course of hearing, the appeal is prima facie filed belatedly and thus time barred. 3. In terms of s.254(2) of the Act, the Misc. Application can be filed within six months from the end of the month in which the order sought to be rectified was passed by the Tribunal. The Tribunal has no power to condone the delay as held in the cases of Ram Baburao Salve vs AO (Mum.) (Writ Petition No.3676 of 2022] judgement dated 03.04.2024; Infantry Security and Facilities through, Proprietor Tukaram M. Surayawanshi vs ITO [Writ Printed from counselvise.com 3 MA No. 308/Del/2017 (ITA No. 5378/Del/2013) A.Y. 2009-10 DCIT v. Shyam Sunder Khemka Petition No. 17175 to 17177 of 2024] dated 03.12.2024; Mal Winder Singh vs UOI [2005] 278 ITR 568 (P&H High Court); DCIT vs Smt. RenudeviNachani in ITA No.27/Ind/2020 (ITAT, Indore); and Ms. Shamsunissa Begum vs DCIT 165 ITD 557 (ITAT, Bangalore). 4. In the light of the law expounded in this regard, the Misc. Application of the Revenue cannot be entertained being barred by limitation. 5. In the result, the Misc. Application filed by the Revenue is dismissed. Order pronounced in the open Court on 21st March, 2025.” 3. Ld. Sr. DR could not bring on record any other authority to controvert the same. 4. After hearing both the parties and respectfully following the aforesaid decisions of the Co-ordinate Bench, we dismiss the instant misc. application filed by the Revenue as barred by limitation, keeping in view provisions of Section 254(2). We Order accordingly. 5. In the result, Revenue’s Misc. application in MA No. 308/Del/2017arising out of ITA no. 5378/Del/2013 for assessment year 2009-10 is dismissed. Order pronounced in the open court on 30.07.2025. (MS. MADHUMITA ROY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated 30.07.2025. PS: *MP* Printed from counselvise.com 4 MA No. 308/Del/2017 (ITA No. 5378/Del/2013) A.Y. 2009-10 DCIT v. Shyam Sunder Khemka Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT DELHI Printed from counselvise.com "