VINOD SINGH, Jaipur V. ITO, Jaipur

MA 12/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6221 (ITAT-JAIPUR)
• Duration Of Justice: 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 19-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Right to appeal; Time period of passing order; Condonation of delay
• Section: 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M/A. NO. 12/JP/2018 (ARISING OUT ITA NO. 454/JP/2015) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11 SHRI VINOD SINGH, P.NO. 13-14, OM COLONY, DELHI BY PASS, JAI SINGH PURA, KHORE, JAIPUR-302002. CUKE VS. ITO, WARD -5(1) JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANWPS6841C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI YOGESH KUMAR SHARMA (C.A.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. SEEMA MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 02/02/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/02/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE FOR SEEKING RECALLING THE ORDER OF THIS TRIBUNAL DATED 07.04.20 17 WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON PROSEC UTION. 2. AT THE OUTSET, WE NOTE THAT THE MISCELLANEOUS AP PLICATION OF THE ASSESSEE IS BEYOND THE PERIOD 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED BY THE TRIBUNAL. THE MIS CELLANEOUS M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 2 APPLICATION WAS FILED BY THE ASSESSEE ON 19.01.2018 . THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE DID NOT RE CEIVE THE IMPUGNED ORDER OF THE TRIBUNAL TILL 08.09.2017 AND THEREFORE , THE ASSESSEE IS SEEKING CONDONATION OF DELAY IN FILING THE PRESENT MISCELLANEOUS APPLICATION. 3. ON THE OTHER HAND, LD. DR HAS OBJECTED TO THE MI SCELLANEOUS APPLICATION BEING BARRED BY LIMITATION AND CONTENDE D THAT THERE IS NO PROVISION OF CONDONATION OF DELAY U/S 254(2) OF THE I.T. ACT. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE CERTIFIED COPY OF THE IMPUGNED ORDER WAS ISSUED AND SEND TO THE ASSESSEE ON 21.04. 2017. WE FURTHER NOTE THAT THE ASSESSEE PROVIDED ADDRESS FOR COMMUNI CATION IN THE FORM NO. 36 AS THE ADDRESS OF THE COUNSEL WHO WAS AUTHOR IZED AND REPRESENTING THE ASSESSEE IN THE APPEAL. THE ASSESS EE NOW COME UP WITH THE PLEA THAT THE ASSESSEE HAS TAKEN THE CERTI FIED COPY ONLY ON 08.09.2017 WHICH IS ONLY ANOTHER COPY OF THE IMPUGN ED ORDER PROVIDED TO THE ASSESSEE ON HIS REQUEST. HOWEVER, ONCE THE O RDER WAS DULY SEND TO THE ASSESSEE AT THE GIVEN ADDRESS THEN, THIS PLE A OF THE ASSESSEE CANNOT BE ACCEPTED. UNDISPUTEDLY THE PRESENT MISCEL LANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE BEYOND THE PERIOD OF 6 MONTHS FROM THE M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 3 END OF THE MONTH IN WHICH THE IMPUGNED ORDER WAS PA SSED. THUS, IN THE ABSENCE OF ANY PROVISION U/S 254(2) OR ANY OTHE R PROVISIONS OF THE INCOME TAX ACT TO CONDONE THE DELAY IN FILING THE M ISCELLANEOUS APPLICATION WE DO NOT FIND ANY SUBSTANCE IN THE PLE A OF THE ASSESSEE TO CONDONE THE DELY. THE COORDINATE BENCH OF THIS TRIB UNAL HAS CONSIDERED AN IDENTICAL ISSUE OF MAINTAINABILITY OF THE MISCEL LANEOUS APPLICATION FILED BEYOND THE PERIOD OF LIMITATION IN CASE OF ITO VS. SHRI RAM RATAN MODI IN MA NO. 93/JP/2017 VIDE ORDER DATED 27.12.2017 A S HAS IN PARA 3 AS UNDER:- 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE PRESE NT MISCELLANEOUS PETITION WAS FILED BY THE REVENUE FOR RECALLING OF THE ORDER DATED 18.12.2015 AND THEREFORE, AS PER UN -AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT, THE LIMITA TION PERIOD PROVIDED FOR RECTIFICATION OF THE MISTAKE WAS 4 YEA RS FROM THE DATE OF ORDER. HOWEVER, THE PROVISIONS OF SECTION 2 54(2) HAS BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01.06. 2016 PROVIDING THE LIMITATION PERIOD FOR RECTIFICATION O F MISTAKE AS 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED. FOR READY REFERENCE, WE QUOTE SECTION 254(2) AS UND ER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 72 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD 73 , AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND 73 SHALL MAKE SUCH AMENDMENT 73 IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE 74 [ASSESSING] OFFICER : M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 4 PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO T HE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : 75 [ 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.] 76 [(2A) IN EVERY APPEAL, THE APPELLATE TRIBUNAL, WHER E IT IS POSSIBLE, MAY HEAR AND DECIDE SUCH APPEAL WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WH ICH SUCH APPEAL IS FILED UNDER SUB-SECTION (1) 77 [OR SUB-SECTION (2)] 78 [***] OF SECTION 253 : 79 [ PROVIDED THAT THE APPELLATE TRIBUNAL MAY, AFTER CONSIDERING THE MERITS OF THE APPLICATION MADE BY THE ASSESSEE, PASS AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APP EAL FILED UNDER SUB-SECTION (1) OF SECTION 253 , FOR A PERIOD NOT EXCEEDING ONE HUNDRED AND EIGHTY DAYS FROM THE DATE OF SUCH ORDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITH IN THE SAID PERIOD OF STAY SPECIFIED IN THAT ORDER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN THE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DEL AY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURT HER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, THAT THE AGG REGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUN DRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL SHALL DI SPOSE OF THE APPEAL WITHIN THE PERIOD OR PERIODS OF STAY SO EXTE NDED OR ALLOWED: M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 5 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE P ERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVIS O, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SI XTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXP IRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING O F THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE.]] (2B) THE COST OF ANY APPEAL TO THE APPELLATE TRIBUN AL SHALL BE AT THE DISCRETION OF THAT TRIBUNAL. THUS, BY VIRTUE THE AMENDMENT IN THE PROVISIONS OF SECTION 254(2) OF THE ACT W.E.F. 01.06.2016 THE TIME PERIOD WITHIN WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED H AS BEEN REDUCED FROM 4 YEARS 6 MONTHS. THERE IS NO QUARREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CANNOT BE GIV EN EFFECT RETROSPECTIVELY SO AS TO TAKE WAY OF RIGHT OF THE P ARTIES TO FILE THE APPLICATION OF RECTIFICATION. THE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERATIVE BANK LTD. VS. UNION OF INDIA(SUPRA) HAS OBSERVED IN PARAS 9 AND 10 AS UNDER:- 09- THE AMENDMENT HAS BEEN MADE EFFECTIVE VIRTUAL LY IN CASE OF ASSESSEE WITH RETROSPECTIVE EFFECT THOUGH THE AMEND MENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RESPECTIVE EFFE CT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPE CTIVE 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 FOURS AND THE SOME HAS NOT BEEN DONE TILL THE AMENDMENT CAME INTO FORCE EXTINGUISHI NG THE RIGHT TO FILE AN APPEAL. THEREFORE, THE HONBLE HIGH COURT HAS OBSERVED THAT THE AMENDMENT IN THE SAID PROVISIONS IS NOT APPLICABLE WITH RETROSPECTIVE EFFECT OTHERWISE IT WOULD EXTINGUISH THE RIGHT OF THE APPLICANT WITH RETROSPECTIVE EFFECT. HENCE, TO THE EXTENT OF THE APPLICABILITY OF THE AMENDMENT PROSPECTIVELY WE DO AGREE WITH THE LD. DR, HOWEVER SINCE THE AMENDMENT CAME INTO F ORCED W.E.F. M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 6 01.06.2016 THEN AFTER THE SUBSTITUTION OF THE PROVI SION W.E.F. 01.06.2016 THE LIMITATION PERIOD FOR RECTIFICATION OF MISTAKE WOULD BE AVAILABLE ONLY UP TO 6 MONTHS FROM THE END OF TH E MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND SIN CE THE ORDER WAS PASSED PRIOR TO THE AMENDMENT, THEREFORE, THE S AID PERIOD OF LIMITATION WILL BE AVAILABLE TO THE ASSESSEE FROM T HE DATE OF AMENDMENT I.E. ON 01.06.2016 FOR A PERIOD 6 MONTHS. THUS, THE PRESENT MISCELLANEOUS PETITION FILED BY THE REVENUE ON 22.05.2017 IS BEYOND THE PERIOD OF LIMITATION WHICH HAS EXPIRED ON 30.11.2016. WE MAY CLARIFY THAT IN CASE THE IMPU GNED ORDER IS PRIOR TO THE AMENDMENT W.E.F. 01.06.2016 THEN THE L IMITATION PERIOD OF 6 MONTHS WOULD RECKON FROM 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NOT CURTAIL BY THE SUBSEQ UENT AMENDMENT. WE FURTHER, NOTE THAT THE BANGALORE BENC HES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 16 6 ITD 172 HAD THE OCCASION TO CONSIDER AN IDENTICAL ISSUE AND ONE OF US THE JUDICIAL MEMBER IS PARTY TO THE SAID ORDER AND HELD IN PARAS 5 TO 8 AS UNDER:- 5. WE HAVE CONSIDERED THE ABOVE SUBMISSIONS AND CAREF ULLY PERUSED THE RELEVANT RECORD. THE ASSESSEE HAS FILED THIS MISCELLANEOUS PETITION ON 10.03.2017 FOR RECALLING OF ORDER OF THE TRIBUNAL DATED 04.01.2016. THE PROVISION OF RECTIFI CATION OF MISTAKE APPARENT FROM RECORD IS PROVIDED UNDER SECTION 254( 2) AS UNDER: '254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS S UCH ORDERS THEREON AS IT THINKS FIT 46. (1A) 48[***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE M ISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSES SING] OFFICER: M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 7 PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-S ECTION 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, 199 8, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.]' 6. THE TIME PERIOD WITHIN WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED HAS BEEN REDUCED FROM 4 YEARS TO 6 MONTHS BY THE AMENDMENT VIDE FINANCE ACT, 2016 W.E.F. 01.06.2016. THUS AFTER THE SUBSTITUTION OF THIS PROVISION W.E.F. 01.06.201 6, THE LIMITATION PERIOD FOR RECTIFICATION OF MISTAKE APPARENT FROM R ECORD IS PROVIDED ONLY FOR 6 MONTHS FROM THE END OF THE MONTH IN WHIC H THE ORDER WAS PASSED. IN THE CASE IN HAND, THE IMPUGNED ORDER WAS PASSED BY THE TRIBUNAL ON 04.01.2016 AND AFTER THE AMENDME NT IN SECTION 254(4) W.E.F. 01.06.2016, THESE MISCELLANEOUS PETIT ION WAS REQUIRED TO BE FILED BEFORE 31.07.2016. PRIOR TO THE AMENDME NT, THE LIMITATION WAS PROVIDED AS 4 YEARS FOR RECTIFICATIO N OF MISTAKE APPARENT FROM RECORD AND THEREFORE THERE WAS NO PRO VISION IN THE INCOME-TAX ACT FOR CONDONATION OF ANY DELAY OF ANY PETITION FOR RECTIFICATION OF MISTAKE FILED AFTER THE SAID PERIO D OF 4 YEARS. EVEN OTHERWISE, THE LIMITATION OF 4 YEARS WAS MORE THAN THE LIMITATION FOR FILING OF THE SUIT AND AS PER THE GENERAL STATUTE I .E., THE LIMITATION ACT WHERE THE LIMITATION FOR INSTITUTION OF SUIT IS PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND THEREFORE THERE WAS NO PROVISION EVEN IN THE LIMITATION ACT FOR CON DONATION OF DELAY IN RESPECT OF DELAY IN FILING THE SUIT. SINCE THE L IMITATION FOR RECTIFICATION OF MISTAKE IS PROVIDED IN THE INCOME- TAX ACT ITSELF, THEREFORE THE PROVISIONS OF LIMITATION ACT ARE NOT APPLICABLE SO FAR AS THE LIMITATION PROVIDED IN THE INCOME-TAX ACT. T HIS PRINCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPEC IAL STATUTE, THEN THE GENERAL STATUTE IS NOT APPLICABLE TO THE EXTENT OF THE PROVISION M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 8 PROVIDED IN THE SPECIAL STATUTE. WE FIND THAT PRIOR TO THE AMENDMENT THE LIMITATION FOR RECTIFICATION OF MISTAKE WAS 4 Y EARS AS PROVIDED UNDER SECTION 254(2) AND THEREFORE THERE WAS NO QUE STION OF PROVIDING ANY PROVISION OR POWER TO THE INCOME TAX APPELLATE TRIBUNAL TO CONDONE THE DELAY AFTER THE EXPIRY OF S UCH 4 YEARS OF LIMITATION. HOWEVER, IN THE AMENDED PROVISIONS OF T HE ACT UNDER SECTION 254(2), THE LIMITATION FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD HAS BEEN DRASTICALLY REDUCED FROM 4 YEARS TO 6 MONTHS AND IN CASE OF A DELAY IN APPLYING FOR RECTI FICATION OF MISTAKE APPARENT FROM RECORD, THE PARTY WHO IS AGGRIEVED BY THE ORDER OF THIS TRIBUNAL SUFFERING FROM MISTAKE WILL BE SUBJEC TED TO A GREAT HARDSHIP AND DEPRIVATION OF VALUABLE RIGHT OF PURSU ING THE APPEAL BEFORE THE TRIBUNAL. BUT IN THE ABSENCE OF ANY PROV ISION GIVING POWER OR JURISDICTION TO THIS TRIBUNAL TO CONDONE T HE DELAY IN FILING THE PETITION FOR RECTIFICATION OF THE MISTAKE APPAR ENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCEED S TRICTLY AS PER THE PROVISIONS AS PROVIDED IN THE STATUTE. 7. WE HAVE NO DOUBT IN OUR MIND THAT THERE IS AN APPA RENT MISTAKE IN THE ORDER DATED 04.01.2016 AS THE TRIBUNAL HAS N OT DECIDED THE APPEALS OF THE ASSESSEE ON MERIT BUT DISMISSED THE SAME IN LIMINE FOR WANT OF PROSECUTION. HOWEVER, THE QUESTION OF R ECTIFICATION OF MISTAKE CANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS FOUND TO BE MAINT AINABLE. THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS BEY OND THE PERIOD OF 6 MONTHS FROM 04.01.2016 AND THEREFORE THE SAME IS BARRED BY LIMITATION. IN THE ABSENCE OF ANY PROVISION TO COND ONE THE DELAY UNDER THE INCOME-TAX ACT, IT MAY BE A CASE OF OMISS ION IN THE PROVISION OF ACT WHICH CANNOT BE SUPPLIED BY US WHE N THERE IS NO AMBIGUITY IN THE PROVISIONS OF SECTION 254(2) OF TH E ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM C ORPN. LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN PARAS 1 6 TO 18 AS UNDER: '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETITIONER T HAT THE POWER M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 9 OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT IS ONLY TO RECTIFY AN ERROR APPARENT FROM THE RECORD. IT DOES NOT EMPO WER THE TRIBUNAL TO RECALL ITS EARLIER O RDER DATED DECEMBER 6, 2007, FOR WHICH THE MISCELLANEOUS APPLICATION WAS FILED ON AU GUST 6, 2012. IT WAS SUBMITTED ON BEHALF OF THE PETITIONER THAT T HE APPLICATION UNDER SECTION 254(1) OF THE ACT WOULD BE THE ONLY P ROVISION UNDER WHICH AN APPLICATION COULD BE MADE FOR RECALL OF AN ORDER, AS UNDER SECTION 254(2) OF THE ACT ONLY THE ORDER CAN BE RECTIFIED BUT CANNOT BE RECALLED. WE FIND THAT THERE IS AN ERROR APPARENT ON RECORD AND THE MISCELLANEOUS APPLICATION IS TO CORR ECT THE ERROR APPARENT FROM THE RECORD . THE CONSEQUENCE OF SUCH RECTIFICATION APPLICATION BEING ALLOWED MAY LEAD TO A FRESH HEARI NG IN THE MATTER AFTER HAVING RECALLED THE ORIGINAL ORDER. HO WEVER, THE RECALL, IF ANY, IS ONLY AS A CONSEQUENCE OF RECTIFY ING THE ORIGINAL ORDER. IT IS PERTINENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT PROHIBIT THE RECALL OF AN ORDER. IN FACT THE PO WER/JURISDICTION OF THE TRIBUNAL TO RECALL AN ORDER ON RECTIFICATION APPLICATION MADE UNDER SECTION 254(2) OF THE ACT IS NO LONGER RES IN TEGRA . THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX COURT IN ASSTT. CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 WHICH HELD THAT THOUGH THE TRIBUNAL HAS NO POWER T O REV IEW ITS OWN ORDER, YET IT HAS JURISDICTION TO RECTIFY A NY MISTAKE APPARENT ON THE FACE OF THE RECORD AND AS A CONSEQU ENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECALL ITS ORDER. IN THE ABOVE CASE, BEFORE THE APEX COURT ON OCTOBER 27, 2000, TH E TRIBUNAL DISMISS ED THE APPEAL OF STOCK EXCHANGE HOLDING THAT IT WAS NOT ENTITLED TO EXEMPTION UNDER SECTION 11 READ WITH SE CTION 12 OF THE ACT. ON NOVEMBER 13, 2000, THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SECTION 254(2) OF T HE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATED SEPTEMBER 5, 2001, ALLOWED THE APPLICATION AND HELD THAT THERE WAS A M ISTAKE APPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION . ACCORDINGLY, THE TRIBUNAL RECALLED ITS ORDER DATED OCTOBER 27, 2 000, FOR THE PURPOSE OF ENTERT AINING THE APPEAL AFRESH. THE REVENUE FILED A M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 10 WRIT PETITION IN THE GUJARAT HIGH COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001. THE ABOVE CHALLENGE BY THE REVEN UE WAS TURNED DOWN BY THE GUJARAT HIGH COURT. THE REVENUE CARRIED THE MATTER IN APPEAL TO T HE APEX COURT WHICH ALSO DISMISSED THE APPEAL OF THE REVENUE. THE APEX COURT OBSERVED THAT THE TRIBUNAL IN ITS ORIGINAL ORDER WHILE DISMISSING THE STOCK EX CHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE BINDING DECISION S OF THE JURISDICTIONAL HIGH COURT. THIS MI STAKE WAS CORRECTED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPRE ME COURT HELD THAT THE RECTIFICATION OF AN ORDER STANDS ON THE FU NDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL AND UPHELD THE EXERCISE OF POWER UNDER SECTION 254(2) OF THE ACT BY THE TRIBUNAL IN RECALLING ITS EARLIER ORDER DATED OCTOBER 27, 2000. THUS, RECALL OF AN ORDER IS NOT BARRED ON RECTIFICATION APPLICATION BEING MADE BY ONE OF THE PARTIES. IN THESE CIRCUMSTANCES, THE APPLICATION WO ULD BE AN APPLICATION FOR RECTIFICATION OF THE ORDER DATED DECEMBER 6, 2007, AND WOULD STAND GOVERNED BY SECTION 254(2) OF THE A CT. 17. IN THE FACTS OF THE PRESENT CASE THERE CAN BE NO DE NIAL THAT THE ORDER DATED DECEMBER 6, 2007, SUFFERS FROM AN ERROR APPARENT FROM THE RECORD. THE ERROR IS IN H AVING IGNORED THE MANDATE OF RULE 24 OF THE TRIBUNAL RULES WHICH REQUIRED THE TR IBUNAL TO DISPOSE OF THE MATTER ON THE MERITS AFTER HEARING T HE RESPONDENTS. IN THESE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOULD BE UNDER SECTION 254(2) OF THE ACT. THE RECALL OF AN ORDER WOULD WELL BE A CONSEQUENCE OF RECTIFYI NG AN ORDER UNDER SECTION 254(2) OF THE ACT. IN THESE CIRCUMSTA NCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE TRIBUN AL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APPELLA NT IS BARRED BY LIMITATION UNDER SECTION 254(2) OF THE ACT AS IT WA S FILED BEYOND A PERIOD OF FOUR YEARS FROM THE ORDER SOUGHT TO BE RE CTIFIED. 18. BEFORE CONCLUDING, WE WOULD LIKE TO MAKE IT CLEAR T HAT AN ORDER PASSED IN BREACH OF RULE 24 OF THE TRIBUN AL RULES, IS AN IRREGULAR M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 11 ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS ASSUMED THAT THE ORDER IN BREACH OF RULE 24 OF THE TRIBUNAL RULE S IS AN VOID ORDER, YET THE SAME WOULD CONTINUE TO BE BINDING TI LL IT IS SET ASIDE BY A COMPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SADIK V. SANJAY RAJ SUBBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDER: 'PATENT AND LATENT INVALIDITY IN A WELL K NOWN PASSAGE LORD RADCLIFFE SAID: 'AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NECESSARY PROCEEDINGS ARE TAKEN AT LAW TO ESTABLISH THE CAUSE OF INVALIDITY A ND TO GET IT QUASHED OR OTHERWISE UPSET, IT WILL REMAIN AS EFFEC TIVE FOR ITS OSTENSIBLE PURPOSE AS THE MOST IMPECCABLE OF ORDERS.' THIS MUST BE EQUALLY TRUE EVEN WHERE THE 'BRAND OF INVALIDITY ' IS PLAINLY VISIBLE: FOR THERE ALSO THE ORDER CAN EFFECTIVELY B E RESISTED IN LAW ONLY BY OBTAINING A DECISION OF THE COURT.' FURTHER , THE SUPREME COURT IN SNEH GUPTA V. DEVI SARUP [2009] 16 SCC 194 HAS OBSERVED. 'WE ARE CONCERNED HEREIN WITH THE QUESTIO N OF LIMITATION. THE COMPROMISE DECREE, AS INDICATED HER EIN BEFORE, EVEN IF VOID WAS REQUIRED TO BE SET ASIDE. A CONSEN T DECREE AS IS WELL KNOWN, IS AS GOOD AS A CONTEST ED DECREE. SUCH A DECREE MUST BE SET ASIDE IF IT HAS BEEN PASSED IN VIOLATIO N OF LAW. FOR THE SAID PURPOSE, THE PROVISIONS CONTAINED IN THE LIMIT ATION ACT, 1963, WOULD BE APPLICABLE. IT IS NOT THE LAW THAT WHERE T HE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE ATTRACTED AT ALL.' THEREFORE, IN THIS CASE ALSO THE PERIOD OF FOUR YEARS FROM THE DA TE OF ORDER SOUGHT TO BE RECTIFIED/RECALLED WILL APPLY AS PROVI DED IN SECTION 254(2) OF THE ACT. THIS IS SO EVEN IF IT IS ASSUMED THAT THE ORDER DATED DECEMBER 6, 2006, IS A VOID ORDER. 19 WE SHALL NOW ANSWER THE QUESTIONS ARISING IN THIS CASE AS RAISED BY US IN PARAGRAPH 4 ABOVE AS UNDER : QUESTION (A) : NO. THE TRIBUNAL HAS NO POWER IN TER MS OF RULE 24 OF THE TRIBUNAL RULES TO DISMISS AN APPEAL BEFORE I T FOR NON - M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 12 PROSECUTION. QUESTION (B) : THE MISCELLANEOUS APPLICATION FOR RE CALL OF AN ORDER FALLS UNDER SECTION 254(2) OF THE ACT AND NOT UNDER SECTION 254(1) OF THE ACT. QUESTION (C) : DOES NOT ARISE IN VIEW OF OUR RESPON SE TO QUERY (B) ABOVE. 20. IN V IEW OF THE REASONS GIVEN HEREINABOVE, WE FIND THE T RIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS APPLICA TION BY ITS ORDER DATED APRIL 10, 2013, AS BEING BEYOND THE PER IOD OF FOUR YEARS AS PROVIDED UNDER SECTION 254(2) OF THE ACT. 21. ACCORDINGLY, THE PETITION IS DISMISSED WITH NO ORDE R AS TO COSTS.' 8. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN TH E CASE OF BHARAT PETROLEUM CORPN. LTD. (SUPRA), WE HOLD TH AT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE ARE BE YOND THE PERIOD OF LIMITATION AS PROVIDED UNDER SECTION 254( 2) AND ARE NOT MAINTAINABLE. ACCORDINGLY THE SAME IS DISMISSED BEI NG BARRED BY LIMITATION. ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMS TANCES AS DISCUSSED IN FOREGOING PARAS AS WELL AS THE DECISIO N OF THE BANGALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCE LLANEOUS PETITION FILED BY THE REVENUE ON 22.05.2017 IS BEYO ND THE PERIOD OF LIMITATION EXPIRED ON 30.11.2016 AND ACCORDING T HE SAME IS NOT MAINTAINABLE. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE MISCELLANEOUS APPLICATION IS BARRED BY LIMITATI ON AND FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL IN CASE OF ITO VS. S HRI RAM RATAN MODI M.A. NO.12/JP/2018 SHRI VINOD SINGH VS. ITO, JAIPUR 13 (SUPRA) WE DISMISSED THE MISCELLANEOUS APPLICATION AS NOT MAINTAINABLE BEING BARRED BY LIMITATION. IN THE RESULT, THIS MISCELLANEOUS APPLICATION IS D ISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/02/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/02/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI VINOD SINGH, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-5(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 12/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR