M/s D.D. Deposits and Advances Pvt Ltd., Kolkata V. CIT, KOLKATA-1, Kolkata

MA 111/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6018 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 11-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHOWNGTHU ADD L
• Assessee Lawyers: S M SURANA
• Keywords: Period of limitation; Retrospective amendment; Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI P.M.JAGTAP, AM & SRI N.V.VASUD EVAN, JM] M.A.NO.111/KOL/2016 (A/O I.T.A NO. 1214/KOL/2013) ASS ESSMENT YEAR : 2008-09 M/S. D.D.DEPOSITS & ADVANCES (P)LTD. -VS.- C.I .T., KOLKATA-1, KOLKATA KOLKATA [PAN : AAACD 5388 H] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI S.M.SURANA, ADVOC ATE FOR THE RESPONDENT : SHRI DAVID Z.CHOWNGTHU, ADD L. CIT(DR) DATE OF HEARING : 01.12.2017. DATE OF PRONOUNCEMENT : 01.12.2017. ORDER PER N.V.VASUDEVAN, JM THIS IS A MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE U/S 254 (2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR RECALLING TH E ORDER DATED 10.08.2015 PASSED BY THE TRIBUNAL FOR A LIMITED PURPOSE OF ADJUDICATI NG GROUND NO.3 RAISED BY THE ASSESSEE IN THE GROUNDS OF APPEAL. IT IS THE PLEA O F THE ASSESSEE THAT THE AFORESAID GROUNDS OF APPEAL HAS NOT BEEN DECIDED BY THE TRIBU NAL AND THEREFORE TO THAT EXTENT THE ORDER OF TRIBUNAL SUFFERS FROM A MISTAKE APPARENT O N THE FACE OF THE RECORD. IT HAS BEEN PRAYED THAT THE ORDER SHOULD BE RECALLED FOR THE LI MITED PURPOSE OF DECIDING GROUND NO.3. 2. AS WE HAVE ALREADY SEEN THAT THE TRIBUNAL PASSED AN ORDER ON 10.08.2015. THIS MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE ON 11.08.2016. THE REGISTRY HAS RAISED AN OBJECTION THAT THE MISCELLANEOUS APPLICAT ION IS TIME BARRED. IT IS THE PLEA OF THE ASSESSEE THAT THE OBJECTION RAISED BY THE REGISTRY IS NOT TENABLE. THE MISCELLANEOUS APPLICATION WAS POSTED FOR HEARING ON THE OBJECTION RAISED BY THE REGISTRY. 2 M.A.NO.111/KOL/2016 (A/O ITA NO.1214/KOL/2013) M/S. D.D.DEPOSITS & ADVANCES (P)LTD. A.YR.2008-09 2 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. SECTION 254 (2) OF THE ACT OF 1961 PRIOR TO THE AMENDMENT BY THE FINANCE ACT, 2016 W.E.F.1.6.2016 R EADS AS UNDER:- 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FRO M 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 ASS ESSING OFFICER: PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSE SSMENT 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 NOT ICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD 4. AFTER THE AMENDMENT BY THE FINANCE ACT, 2016, W. E.F. 1.6.2016, SEC.254(2) READ AS UNDER: 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 THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO IT S NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER: 5. IT CAN BE SEEN FROM THE AFORESAID AMENDMENT THAT THE TIME LIMIT FOR FILING MISCELLANEOUS APPLICATION U/S.254(2) HAS BEEN CURTA ILED TO 6 MONTHS FROM THE DATE OF THE PASSING OF THE ORDER FROM A PERIOD OF 4 YEARS FROM THE DATE OF THE ORDER. THE ADMITTED FACTS IN THE PRESENT M.A. ARE THAT THE ORDER AGAINST WHICH THE PRESENT M.A. IS BEING FILED WAS PASSED PRIOR TO 1.6.2016 AND THE APPLICATION U/S.254(2) IN RESPECT OF SUCH ORDER IS FILED AFTER 1.6.2016. THE QUESTION B EFORE US IS AS TO WHETHER IN RESPECT OF ORDERS PASSED PRIOR TO 1.6.2016 AND WHERE M.A. U/S. 254(2) IN RESPECT OF SUCH ORDERS IS FILED AFTER 1.6.2016, WHETHER THE TIME LIMIT PRESC RIBED U/S.254(2) PRIOR TO THE AMENDMENT BY FINANCE ACT, 2016 SHOULD APPLY OR THE TIME LIMIT PRESCRIBED AFTER THE AMENDMENT BY FINANCE ACT, 2016 SHOULD APPLY? 6. THE HONBLE M.P.HIGH COURT IN WRIT PETITION NO.4 144/2017 IN THE CASE OF DISTRICT CENTRAL CO-OP. BANK LTD., RAISEN VS. UNIO N OF INDIA VIDE ITS JUDGMENT DATED 09TH OCTOBER, 2017 HAD TO DEAL WITH AN IDENTICAL CA SE SUCH AS THE ASSESSEE. THE 3 M.A.NO.111/KOL/2016 (A/O ITA NO.1214/KOL/2013) M/S. D.D.DEPOSITS & ADVANCES (P)LTD. A.YR.2008-09 3 HONBLE COURT RELIED ON THE DECISION OF THE APEX CO URT IN THE CASE OF M. P. STEEL CORPORATION VS. COMMISSIONER OF CENTRAL EXCISE REPO RTED IN (2015) 7 SCC 58 WHEREIN IT WAS HELD THAT THOUGH PERIODS OF LIMITATION, BEIN G PROCEDURAL LAW, ARE TO BE APPLIED RETROSPECTIVELY, YET IF A SHORTER PERIOD OF LIMITAT ION IS PROVIDED BY A LATER AMENDMENT TO A STATUTE, SUCH PERIOD WOULD RENDER THE VESTED RIGH T OF ACTION CONTAINED IN THE STATUTE NUGATORY AS SUCH RIGHT OF ACTION WOULD NOW BECOME T IME BARRED UNDER THE AMENDED PROVISION. THEREFORE A STATUTE WHICH WHILE PROCEDU RAL IN ITS CHARACTER, IF IT AFFECTS VESTED RIGHTS ADVERSELY IT HAS TO BE CONSTRUED AS PROSPECTIVE. FOLLOWING THE AFORESAID VIEW, THE HONBLE M.P.HIGH COURT HELD AS FOLLOWS: 08. KEEPING IN VIEW THE JUDGMENT REFERRED BY THEIR LORDSHIPS IN THE AFORESAID CASE AND THE JUDGMENT DELIVERED BY THEIR LORDSHIPS IN THE M.P. STEEL CORPORATION (SUPRA), IN THE PRESENT CASE ALSO THE NEW LAW OF LI MITATION PROVIDING A SHORTER PERIOD CANNOT CERTAINLY EXTINGUISH A VESTED RIGHT O F ACTION. 09. THE AMENDMENT HAS BEEN MADE EFFECTIVE VIRTUALLY IN CASE OF ASSESSEE WITH RETROSPECTIVE EFFECT THOUGH THE AMENDMENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RETROSPECTIVE EFFECT, HOWEVER, THE EXISTING RI GHT HAS BEEN EXTINGUISHED WITH RETROSPECTIVE EFFECT IN CASE OF THE ASSESSEE. 10. IN THE CONSIDERED OPINION OF THIS COURT, THE LE GISLATURE SHOULD HAVE GRANTED SOME TIME TO THE ASSESSEES WHO COULD HAVE FILED AN APPEAL WITHIN A PERIOD OF FOUR YEARS AND THE SAME HAS NOT BEEN DONE TILL THE AMEND MENT CAME INTO FORCE EXTINGUISHING THE RIGHT TO FILE AN APPEAL. 11. IN THE CONSIDERED OPINION OF THIS COURT, APPLIC ATION PREFERRED BY THE ASSESSEE SHOULD NOT HAVE BEEN DISMISSED BY THE TRIBUNAL ON A CCOUNT OF THE AMENDMENT WHICH HAS REDUCED THE PERIOD OF LIMITATION OF FOUR YEARS TO SIX MONTHS. 12- RESULTANTLY, THE IMPUGNED ORDER PASSED BY THE RESPO NDENT ON 23/12/2016 IS HEREBY QUASHED AND THE WRIT PETITION STANDS ALLOWED . THE INCOME TAX APPELLATE TRIBUNAL IS DIRECTED TO DECIDE THE APPLICATION PREF ERRED UNDER SECTION 254(2) ON MERITS WITHIN A PERIOD OF THREE MONTHS FROM THE DAT E OF RECEIPT OF CERTIFIED COPY OF THIS ORDER. THE PARTIES SHALL APPEAR BEFORE THE TRIBUNAL ON 30TH OF OCTOBER, 2017. 7. FOLLOWING THE AFORESAID DECISION, WE HAVE TO HOL D THAT THE PRESENT MA THOUGH FILED AFTER 1.6.2016 WILL CONTINUE TO BE GOVERNED B Y THE LAW OF LIMITATION LAID DOWN U/S.254(2) ON THE DATE WHEN THE ORDER AGAINST WHICH THE MA IS SOUGHT TO BE FILED WAS PASSED AND NOT LAW AS PER THE LAW AS AMENDED BY THE AMENDMENT W.E.F. 1.6.2016. THE 4 M.A.NO.111/KOL/2016 (A/O ITA NO.1214/KOL/2013) M/S. D.D.DEPOSITS & ADVANCES (P)LTD. A.YR.2008-09 4 MA THEREFORE HAS TO BE CONSTRUED AS ONE FILED WITHI N THE PERIOD OF LIMITATION AND HAS TO BE ACCEPTED AS VALIDLY PRESENTED WITHIN THE PERIOD OF LIMITATION. THE OBJECTION OF THE REGISTRY IS THEREFORE HELD TO BE NOT IN ACCORDANCE WITH LAW. 8. AS FAR AS THE MERITS OF THE MISCELLANEOUS APPLIC ATION IS CONCERNED IT IS NOT DISPUTED BEFORE US THAT GROUND NO.3 RAISED BY THE A SSESSEE IN ITS APPEAL WAS NOT ADJUDICATED. THEREFORE TO THIS EXTENT THERE IS A MI STAKE APPARENT ON THE FACE OF THE RECORD. WE THEREFORE RECALL THE ORDER DATED 10.08.2 015 FOR A LIMITED PURPOSE OF DECIDING GROUND NO.3 RAISED BY THE ASSESSEE IN ITS APPEAL. T HE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING IN DUE COURSE AFTER SERVICE OF NOTICE T O THE PARTIES. 9. IN THE RESULT THE MISCELLANEOUS APPLICATION BY T HE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 01.12.2017. SD/- SD/- [P.M.JAGTAP] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 01.12.2017. [RG SR.PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. D.D.DEPOSITS & ADVANCES (P)LTD., 16, G.C.AVE NUE, 7 TH FLOOR, KOLKATA-700072. 2. PR. C.I.T., KOLKATA-1, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SR.P RIVATE SECRETARY HEAD OF OFFICE/DDO, ITAT KOLKATA BENCHES, KOLKATA. 5 M.A.NO.111/KOL/2016 (A/O ITA NO.1214/KOL/2013) M/S. D.D.DEPOSITS & ADVANCES (P)LTD. A.YR.2008-09 5