INCOME TAX OFFICER-1(3), BHILAI V. VINNI SHARMA, BHILAI

MA 30/RPR/2024

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The case involves a miscellaneous application filed by the revenue against the respondent, Vinni Sharma, arising from a previous income tax appeal. The application was filed under Section 254(2) of the Income Tax Act, 1961, which allows the Tribunal to amend any order to rectify a mistake apparent from the record within six months from the end of the month in which the order was passed. However, the application was filed 20 days beyond this period. The Tribunal, referencing various judgments, including those from the High Courts of Punjab & Haryana, Karnataka, and Bombay, concluded that it did not have the authority to condone the delay in filing the application, leading to its dismissal.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 360917 (ITAT-RAIPUR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-05-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Assessment Year: 2012-2013
• Other Referred Cases: Daryapur Shetkari Sahakari Ginning & Pressing Factory Ltd. Vs. ACIT, Amravati, TDK Electronics AG Vs. ACIT, Karuturi Global Ltd. Vs. DCIT, Leena Power Tech Engineers Pvt. Ltd. Vs. Deputy Commissioner of Income \\u2013 Tax Circle \\u2013 15(1)(2) and Ors., Raja Malwinder Singh Vs. Union of India, Muninaga Reddy Vs. Assistant Commissioner of Income Tax
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: YOGESH SETHIA
• Keywords: Condonation of delay; Opportunity of being heard; Period of limitation; Rectification of order; Time period of passing order
• Section: 271(1)(c)

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ “एक-सदèय” मामला रायपुर मɅ IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH “SMC”, RAIPUR Įी पाथ[ सारथी चौधरȣ, ÛयाǓयक सदèय क े सम¢ BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. No.30/RPR/2024 (Arising out of ITA No.273/RPR/2023) Ǔनधा[रण वष[/Assessment Year : 2012-13 The Income Tax Officer-1(1), Bhilai (C.G.) .......अपीलाथȸ / Appellant बनाम / V/s. Vinni Sharma Lotus-260, Talpuri, Ruabandha, Bhilai, Dist.: Durg-490 009(C.G.) PAN: BWGPS9832R ……Ĥ×यथȸ / Respondent Assessee by : Shri Yogesh Sethia, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing :08.05.2025 घोषणा कȧ तारȣख / Date of Pronouncement : 19.05.2025 2 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 आदेश / ORDER PER PARTHA SARATHI CHAUDHURY, JM The captioned Miscellaneous Application has been filed by the revenue arising out of ITA No.273/RPR/2023 for assessment years 2012- 13 u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 2. At the very outset, the Ld. Sr. DR submitted that the captioned application has been filed beyond the stipulated time period as contemplated u/s.254(2) of the Act and the same is time barred by 20 days. 3. The Ld. Counsel for the assessee submitted that as the captioned application involves a delay of 20 days, therefore, the same is liable to be dismissed as not maintainable. 4. I have heard the submissions of the parties herein on the aforesaid application filed by the revenue. It is noted that the captioned application has been filed by the revenue beyond the stipulated time period contemplated u/s.254(2) of the Act. For the sake of clarity, Section 254(2) of the Act is culled out as follows: “254(2) “The Appellate Tribunal may, at any time within six months from the end of the month in which the order was passed, with a view to rectifying any mistake apparent from 3 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing Officer]: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: [Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]” 5. Considering the aforesaid provision, I am of the view that as the Tribunal unlike as in case of an appeal, does not have any power to condone the delay involved in a miscellaneous application filed under sub- section (2) of Section 254 of the Act, therefore, the captioned application filed by the revenue beyond the stipulated time period is not maintainable. 6. The Co-ordinate Bench of the Tribunal, Nagpur in the case of Daryapur Shetkari Sahakari Ginning & Pressing Factory Ltd. Vs. ACIT, Amravati, MA Nos.12 to 14/NAG/2019 arising out of ITA Nos. 96 to 98/NAG/2010, dated 20.03.2020 has held and observed that in so far Section 253(5) of the Act is concerned, in case of appeal or cross objection if there is delay regarding filing of the same, the Tribunal has power to condone the delay, if there is sufficient reasons provided and placed on record before the Tribunal and upon satisfaction, such condonation can be done as per the said provisions. On the other hand, 4 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 the question is with regard to the condonation of delay in filing miscellaneous application u/s.254(2) of the Act whether the Tribunal has got power to condone such delay. “In our considered view, there is no specific power provided u/s. 254(2) of the Act to condone delay in filing the miscellaneous application”. In another decision of the Pune Tribunal in the case of TDK Electronics AG Vs. ACIT, ITA No.1810/PUN/2019 for A.Y.2015-16, it has been held that power to condone the delay with the Tribunal can only be exercised if it is specifically provided in the statute itself. As already examined so far as Income Tax Act is concerned, in respect of Tribunal it is with regard to appeals and cross objections only that such power is given if the Tribunal is satisfied about the sufficiency of reasons about such delay as enshrined in clause (5) of Section 253 of the Act. But so far as Section 254(2) of the Act is concerned, there is no express power conferred on the Tribunal by the Legislature in the statute where the Tribunal can condone the delay. 7. My view is also fortified by the judgment of the Hon’ble High Court of Punjab & Haryana in the case of Raja Malwinder Singh Vs. Union of India (2005) 278 ITR 568 (P&H) (which though was passed referring to the prescribed time period of 4 years as was earlier available, and had been vide the Finance Act, 2016 w.e.f.01.06.2016 substituted by a period “six months”). For the sake of clarity, the observation of the Hon’ble High Court are culled out as follows: 5 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 “7. The above observations are apt in the present context. In discerning the correct interpretation, the purpose for which the provision was brought in namely, to lay down the outer limit, within which the order could be modified, cannot be lost sight of. In our view, the provision of period of limitation under Section 254(2) of the Act cannot be reduced to one of ornamental existence through the interpretative process, as pleaded by learned Counsel for the petitioner. 8. In our opinion, therefore, an application for rectification of mistake in an order passed by the Tribunal has to be filed within 4 years from the date of the order and not at any time. Any other interpretation, in our view, would lead to absurdity and cannot therefore be accepted. The aforementioned circular of the Board is of no avail of the assessee, inasmuch as it only seeks to remove the difficulties, which an assessee or the revenue may face on account of non-disposal of an application for rectification filed within the period of four years. The circular clearly stipulates that the application for rectification under Section 154, pari materia to Section 254(2) of the Act has to be filed within the statutory time limit of four years. In fact, the circular also goes to show that the Assessing Officer of the Tribunal, as the case may be, assuming that it was applicable to applications filed under Section 254(2) of the Act, has no jurisdiction to amend the order after the expiry of four years. 9. For the view, we have taken, it is unnecessary to deal with the ingenious argument advanced by learned Counsel for the assessee with regard to the significance of 'comma', appearing in the section after the expression \"Tribunal may\". 10. For the foregoing reasons, the writ petition being devoid of any merit, is dismissed, but with no order as to costs.” 8. Also, the Hon’ble High Court of Karnataka in the case of Karuturi Global Ltd. Vs. DCIT (2020) 116 Taxmann.com 924 (Karn.) on the identical issue has held as follows: “7. However, in view of the statutory limitation provided under the proviso to Section 254(2) of the Act, the Tribunal was not competent to condone the delay beyond six (6) months. Hence, the only remedy available to the petitioner is to invoke the writ jurisdiction under Articles 226 and 227 of Constitution of India 6 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 seeking for condonation of delay in filing the miscellaneous petition.” 9. Further, the Hon’ble High Court of Bombay in the case of Leena Power Tech Engineers Pvt. Ltd. Vs. Deputy Commissioner of Income – Tax Circle – 15(1)(2) and Ors. (2025) 172 taxmann.com 424 (Bom.) after relying on the judgment of the Hon’ble High Court of Karnataka in the case of Karuturi Global Ltd. Vs. DCIT (supra) and its own earlier judgment in the case Ram Baburao Salve Vs. A.O, (2024) 162 taxmann.com 354 (Bom.) had dealt with an identical issue and observed as follows: “9. The ITAT, in this case, by order dated 21 September 2021, rejected the Assessee’s appeal. The Petitioner claims that this order was communicated to the Petitioner on 17 November 2021. Accordingly, in Section 254(2), the limitation for filing a Miscellaneous Application under Section 254(2) expires on 31 May 2022. This Section provides that such an application for rectification must be filed within six months from the end of the month the order was passed. 10. The Miscellaneous Application invoking Section 254(2) was filed only on 26 August 2022, after an approximate three month delay. The ITAT, in the impugned order dated 03 November 2023, held that it had no jurisdiction to condone the delay. 11. Regarding the first contention based on the Hon’ble Supreme Court’s order dated 10 January 2022, we agree with Mr. Sharma that such a contention was never raised before the ITAT. Such a contention is not even mentioned in the Miscellaneous Application. Such a contention also finds no mention in the impugned order dated 03 November 2023. This argument is sought to be raised for the first time before this Court. 7 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 12. Still, we have considered the above argument. Paragraph 5(I) of the Hon’ble Supreme Court’s order directs that the period from 15 March 2020 to 28 February 2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. Paragraph 5(II) clarifies that, consequently, the balance period of limitation remaining as on 03 October 2021, if any, shall become available with effect from 01 March 2022. 13. In the facts of the present case, the Petitioner cannot claim any benefit of the above direction. This is because, even according to the Petitioner, the limitation period expired on 31 May 2022, i.e. beyond the period between 15 March 2020 and 28 February 2022. The Petitioner’s contention that the limitation in this matter would commence only from 01 March 2022 cannot be accepted. This is not what the order which the Petitioner relies upon says. 14. Therefore, even though the plea based on the order of the Hon’ble Supreme Court was never raised by the Petitioner before the ITAT, still, upon consideration of the same, we find that the same would not assist the Petitioner in the facts of the present case. 15. Insofar as the second contention is concerned, the issue of sufficient cause is not quite relevant. Section 254 of the IT Act does not contain any provision that enables the ITAT to condone a delay beyond 6 months. This is so held by the coordinate bench in Ram Baburao Salve (supra). 16. Given the above position, sufficient cause, if any, would be irrelevant. The ITAT has also not gone into the issue of sufficient cause but by relying on the decision of the Karnataka High Court Re. Karuturi Global Ltd. Vs. DCIT-2 held that it has no power to condone the delay in entertaining an application under Section 254(2) of the IT Act. 17. Since the ITAT’s view aligns with that of our coordinate bench in Ram Baburao Salve (supra) and the decision of the Karnataka High Court in Re. Karuturi Global Ltd. (supra), we see no good ground to interfere with the impugned order. 18. For all the reasons stated above, we dismiss this petition and discharge the Rule without imposing any cost orders.” 8 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 10. The Hon’ble Karnataka High Court in the case of Muninaga Reddy Vs. Assistant Commissioner of Income Tax (2019) 417 ITR 699 (Karn.) observed and held that in this case, the assessee had moved miscellaneous application before the Tribunal u/s.254(2) of the Act contending that the notice u/s.274 r.w.s. 271(1)(c) of the Act did not specify the specific limb in which penalty was to be levied. However, the Tribunal dismissed the petition i.e. miscellaneous application as barred by limitation. The Hon’ble High Court held that it is only the power with the Hon’ble High Court under Article 226 and 227 of the Constitution of India that delay in filing of miscellaneous application can be condoned and to that extent the decision of the Tribunal exercising power u/s. 254(2) of the Act was correct since there is no specific power mentioned in the provision regarding the condonation of delay in so far Tribunal is concerned. 11. Accordingly, I am of the view that the power to condone the delay with the Tribunal can only be exercised if it is specifically provided in the statute itself. As observed hereinabove, the Tribunal is vested with the power to condone the delay with regard to appeals and cross-objections only, if it is satisfied about the sufficiency of reasons about such delay as enshrined in clause (5) of section 253 of the Act, but no such express power are vested with it to condone the delay involved in filing of a miscellaneous application u/s.254(2) of the Act. Accordingly, the 9 ITO-1(3), Bhilai Vs. Vinni Sharma MA No.30/RPR/2024 captioned application filed by the revenue being barred by limitation is dismissed. 12. In the result, the miscellaneous application filed by the revenue is dismissed. Order pronounced in open court on 19th day of May, 2025. Sd/- (PARTHA SARATHI CHAUDHURY) ÛयाǓयक सदèय/JUDICIAL MEMBER रायपुर / Raipur; Ǒदनांक / Dated : 19th May, 2025. SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The Pr. CIT-1, Raipur (C.G.) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, “एक-सदèय” बɅच, रायपुर / DR, ITAT, “SMC” Bench, Raipur. 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur "