Joginpally B.R.Educational Society, Hyderabad, Hyderabad V. DCIT, Central Circle-1, Hyderabad, Hyderabad

MA 12/HYD/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5777 (ITAT-HYDERABAD)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 02-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 20-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N SWAPNA
• Assessee Lawyers: S RAMA RAO
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 12/HYD/2017 (IN ITA NO. 988/HYD/2015 ASSESSMENT YEAR: 2012-13) & M.A. NO. 13/HYD/2017 (IN ITA NO. 990/HYD/2015 ASSESSMENT YEAR: 2012-13) M/S JOGINAPALLY B.R EDUCATIONAL SOCIETY, HYDERABAD. PAN AAATJ3217A VS. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-1, HYDERABAD. (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI S. RAMA RAO REVENUE BY : SMT. N. SWAPNA DATE OF HEARING : 22-09-2017 DATE OF PRONOUNCEMENT : 22-09-2017 ORDER PER D. MANMOHAN, VICE PRESIDENT: BY THESE APPLICATIONS, ASSESSEE SEEKS RECTIFICATION OF ORDERS PASSED BY THE ITAT B BENCH, HYDERABAD FOR THE REASONS GIVEN IN THE PETITION. AT THE OUTSET, IT MAY BE NOTED THAT THE IMPUGNED ORDER WAS PRONOUNCED ON 18-11-2015 AND AS PER THE PROVISIONS OF SEC. 254(2) OF THE IT ACT, AS IT EXISTED AT THAT POINT OF TIME, A MISCELLANEOUS APPLICATION CAN BE FILED WITHIN 04 YEARS FROM THE DATE OF THE ORDER. IN 2016, SEC 254(2) OF THE IT ACT WAS AMENDED, WHEREBY THE EARLIER PERIOD OF FOUR M.A NO. 12 & 13 /HYD/2017 M/S. JOGINPALLY B.R. EDUCATIONAL SOCIETY, HYDERABAD. PAGE 2 OF 4 YEARS HAS BEEN SUBSTITUTED FOR SIX MONTHS. THE AMENDMENT BY THE FINANCE ACT 2016 WAS MADE EFFECTIVE FROM 01-06-2016. THE CASE OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE SAID PROVISION IS NOT RETROSPECTIVE IN OPERATION AND GOING BY THE OLD PROVISION, ASSESSEE IS ENTITLED TO FILE A MISCELLANEOUS APPLICATION ON OR BEFORE 2019. SINCE, THE PETITION HAS BEEN FILED IN 2017, IT IS WELL WITHIN THE PERIOD OF LIMITATION. 2. THE LD. DR ON THE OTHER HAND PLACED BEFORE US A COPY OF THE ORDER OF ITAT J BENCH, MUMBAI IN THE CASE OF DY CIT VS HITA LAND PVT LTD IN ITA NO. 8247/MUM/2011 (M.A. NO. 103/MUM/2017), WHEREIN THE BENCH CONCLUDED THAT THE AMENDMENT IS CLARIFICATORY IN NATURE THEREFORE, RETROSPECTIVE IN OPERATION. PERIOD OF LIMITATION CAN BE TAKEN INTO CONSIDERATION FROM 01-06-2016 EVEN FOR THE ORDERS PASSED PRIOR TO THAT CUT- OFF DATE. IN THIS REGARD THE TRIBUNAL OBSERVED AS UNDER: 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SINCE, PRELIMINARY LEGAL OBJECTIONS QUESTIONS THE VERY ADMISSIBILITY OF THESE RECTIFICATION APPLICATION, WE TAKE UP THE SAME FIRST. FOR RECORD, WE NOTE THAT THE DATE OF ORDER PASSED BY THE TRIBUNAL IS 22-03-2013 AND THE REVENUE HAS FILED THESE APPLICATIONS ON 28-02-2017 WHICH ARE CLEARLY BEYOND A PERIOD OF SIX MONTHS AS PROVIDED IN SECTION 254(2). AT THIS JUNCTURE, IT WOULD BE PRUDENT TO REPRODUCE THE RELEVANT PROVISIONS AS CONTAINED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961:- ORDERS OF APPELLANT TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINS FIT. (1A) [***] (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 ANY7 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; M.A NO. 12 & 13 /HYD/2017 M/S. JOGINPALLY B.R. EDUCATIONAL SOCIETY, HYDERABAD. PAGE 3 OF 4 IT IS TO BE NOTICED THAT THE EARLIER PERIOD OF FOUR YEARS HAS BEEN SUBSTITUTED WITH SIX MONTHS BY THE FINANCE ACT, 2016 WITH EFFECT FROM 01-06-2016. HOWEVER, WE FIND THAT NO DISTINCTION HAS BEEN MADE IN THIS SECTION BETWEEN ORDERS PASSED BEFORE 01/06/2016 AND ORDERS PASSED AFTER 01/06/2016. MOREOVER, THE TRIBUNAL ORDER WAS DATED 22/03/2013 AND THEREFORE, THE REVENUE HAD AMPLE TIME TO GO THROUGH THE SAME AND PIN POINT THE MISTAKES IN THE ORDER BUT IT HAS FAILED TO DO SO. THEREFORE, WE FIND NO FORCE IN THESE MISCELLANEOUS PETITIONS PRIMARILY BECAUSE OF THE REASON THAT THE STATUTE DOES NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BEEN FILED U/S 254(2) AT ANY TIME BEYOND A PERIOD OF SIX MONTHS FROM THE DATE OF THE ORDER. THE TRIBUNAL HAS BEEN GIVEN POWER TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RELEVANT PERIOD, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD AS PER SECTION 253(5). HOWEVER, THIS TRIBUNAL IS NOT ENSHRINED WITH SUCH POWERS IN RESPECT OF A MISCELLANEOUS PETITION FILED U/S 254(2) OF THE INCOME TAX ACT. IF WE ARE NOT GIVEN THAT POWER, THEN IT IS NOT EXPECTED FROM US TO EXERCISE SUCH POWER WHICH IS NOT PROVIDED IN THE ACT. THE TRIBUNAL, BEING CREATION OF LAW, IS BOUND BY THE STATUTORY PROVISIONS AND OUR JURISDICTION IS SIMPLY TO INTERPRET AND FOLLOW THE STATUTE. THERE IS NO SCOPE FOR US TO IMPORT ANY WORD INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPORTATION WOULD BE NOTHING BUT TO AMEND THE STATUTE. WE THEREFORE HOLD THAT THE CONDONATION OF DELAY OF THESE PETITIONS IS BEYOND OUR JURISDICTION, HENCE REJECTED. SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI TRIBUNAL IN THE CITED ORDER. HENCE, FINDING THE PETITIONS TIME BARRING, WE DISMISS THE SAME. 3. THE LD. COUNSEL APPEARING FOR THE ASSESSEE COULD NOT PLACE BEFORE US ANY CONTRARY DECISION TO SUPPORT HIS STAND. 4. HAVING REGARD TO CIRCUMSTANCES OF THE CASE, RESPECTFULLY FOLLOWING DECISION CITED SUPRA WE HOLD THAT THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE BARRED BY LIMITATION AND ACCORDINGLY THEY ARE DISMISSED AS UNADMITTED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND SEPTEMBER, 2017. SD/- SD/- (S. RIFAUR RAHMAN) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT HYDERABAD, DATED: 22 ND SEPTEMBER, 2017. M.A NO. 12 & 13 /HYD/2017 M/S. JOGINPALLY B.R. EDUCATIONAL SOCIETY, HYDERABAD. PAGE 4 OF 4 KRK COPY TO:- 1. JOGINAPALLY BR EDUCATIONAL SOCIETY C/O M/S. MAHESH, VIRENDER & SRIRAM, CAS, DOOR NO. 6-3-788/36 & 37A. AMEERPET, HYDERABAD. 2) DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCAL-1, HYDERABAD. 3) CIT(A)-XI, HYDERABAD 4) ADDL.CIT, CENTRAL RANGE-1, HYDERABAD 5)THE DEPARTMENT REPRESENTATIVE, I.T.A.T., HYD. 6) GUARD FILE.