ACIT, Kannur V. Shri.K.V.Damodaran, Payyannur

MA 141/COCH/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1429 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 02-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M ANIL KUMAR SMT LATHA V KUMAR
• Keywords: Period of limitation

Judgement Text

1 MP NO. 141/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. 141/COCH/2013 (ARISING OUT OF I.T(SS)A NO.136/COCH/2005) (BLOCK PERIOD 1997-98 TO 2003-04) A.C.I.T., CIR.1 VS SHRI K.V. DAMODARAN CALICUT CLOTH MERCHANT MAIN ROAD, PAYYANUR PAN : ACPPD8727L (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M ANIL KUMAR / SMT. LATHA V KUMAR RESPONDENT BY : SMT. DIVYA RAVINDRAN DATE OF HEARING : 03-01-2014 DATE OF PRONOUNCEMENT : 03 -01-2014 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PE TITION ON THE GROUND THAT THE HIGH COURT, IN THE JUDGMENT DATED 0 1-11-2010 GAVE LIBERTY TO THE DEPARTMENT TO FILE MISCELLANEOUS PETITION FO R RECTIFICATION IF THE SEARCH HAD YIELDED MATERIALS PERTAINING TO INVESTMENT IN T HE BUILDING OR EXPENDITURE. IN VIEW OF THIS OBSERVATION, ACCORDIN G TO THE LD.DR, THE MISCELLANEOUS PETITION IS FILED. THE LD.DR FURTHER SUBMITTED THAT SEARCH HAD RESULTED IN SEIZURE OF MATERIALS RELATING TO IN VESTMENTS MADE BY THE 2 MP NO. 141/COCH/2013 ASSESSEE. THEREFORE, THERE IS AN ERROR IN THE ORDE R OF THIS TRIBUNAL, WHICH NEEDS TO BE RECTIFIED. ON A QUERY FROM THE BENCH AS TO HOW THIS APPLICATION OF THE REVENUE IS MAINTAINABLE AFTER TH E EXPIRY OF FOUR YEARS FROM THE DATE OF THE ORDER, THE LD.DR SUBMITTED THA T THIS APPLICATION WAS FILED ONLY ON THE BASIS OF THE JUDGMENT OF THE HIGH COURT DATED 01-11-2010, THEREFORE, THE PERIOD OF LIMITATION HAS TO BE RECKO NED FROM THE DATE OF THE JUDGMENT AND NOT FROM THE DATE OF ORDER OF THIS TRI BUNAL. 2. WE HEARD SMT. DIVYA RAVINDRAN, THE LD.COUNSEL FO R THE ASSESSEE ALSO. 3. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 254(2) OF THE ACT. SECTION 254(2) OF THE ACT ENABLES THE TRI BUNAL TO RECTIFY A MISTAKE WHICH IS APPARENT FROM THE RECORD WITHIN A PERIOD O F FOUR YEARS FROM THE DATE OF THE ORDER OF THIS TRIBUNAL. IN THIS CASE, ADMITTEDLY, THE DATE OF THE ORDER OF THIS TRIBUNAL IS 22-07-2009. THE FOUR YEA RS PERIOD EXPIRED ON 21- 07-2013. ADMITTEDLY, THE REVENUE FILED THE APPLICA TION BEFORE THIS TRIBUNAL ON 01-11-2013. THEREFORE, THE APPLICATION FILED BY THE REVENUE IS BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER . 4. NOW THE QUESTION ARISES FOR CONSIDERATION IS WHE THER THE PERIOD OF LIMITATION HAS TO BE COMPUTED FROM THE DATE OF THE ORDER OF THIS TRIBUNAL OR 3 MP NO. 141/COCH/2013 FROM THE DATE OF THE ORDER OF THE HIGH COURT. SECT ION 254(2) READS AS FOLLOWS: 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WIT HIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW OF RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORD ER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE ASSESSING OFFICER: 5. FROM THE ABOVE PROVISION, IT IS APPARENT THAT TH E TRIBUNAL MAY PASS AN ORDER WITHIN FOUR YEARS FROM THE DATE OF THE ORD ER. THIS SECTION REFERS TO THE ORDER PASSED BY THE TRIBUNAL AND NOT BY THE HIG H COURT. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THIS TRIBUNAL HAS NO POWER TO EXTEND THE PERIOD OF LIMITATION BEYOND THE PERIOD PROVIDED IN SECTION 254(2) OF THE ACT. THE LEGISLATURE IN THEIR WISDOM HAS NOT MADE ANY EN ABLING PROVISION TO CONDONE THE DELAY, IF ANY, IN FILING THE APPLICATIO N FOR RECTIFICATION. THEREFORE, THIS TRIBUNAL CANNOT GO BEYOND THE LEGIS LATIVE INTENTION. 6. NO DOUBT, THE HIGH COURT GAVE LIBERTY TO THE ASS ESSEE TO FILE AN APPLICATION FOR RECTIFICATION. THAT MEANS, THE REC TIFICATION HAS TO BE FILED WITHIN THE PERIOD OF LIMITATION AS PROVIDED IN SECT ION 254(2) OF THE ACT. NOWHERE IN THE HIGH COURT JUDGMENT, THE HIGH COURT EXTENDED THE PERIOD 4 MP NO. 141/COCH/2013 OF LIMITATION. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE HIGH COURT IN EXERCISE OF THEIR EXTRAORDINARY JURISDICTION UND ER ARTICLE 226 / 227 OF THE CONSTITUTION OF INDIA CAN VERY WELL EXTEND THE PERI OD OF LIMITATION IF THE HIGH COURT FELT THAT THE TRIBUNAL HAS TO ENTERTAIN THE A PPLICATION EVEN BEYOND FOUR YEARS. HOWEVER, THE HIGH COURT HAS NOT REFERR ED ANYTHING IN THE ORDER PERTAINING TO THE PERIOD OF LIMITATION. THEREFORE, THIS TRIBUNAL CANNOT GO BEYOND THE PERIOD OF LIMITATION PROVIDED U/S 254(2) OF THE ACT. MOREOVER, THE HIGH COURT JUDGMENT WAS DELIVERED ON 01-11-2010 . ALMOST AFTER THREE YEARS FROM THE DATE OF ORDER OF THE HIGH COURT THE APPLICATION HAS BEEN FILED. NO EXPLANATION IS FORTHCOMING FROM THE DEPA RTMENT WHY THEY TOOK THREE YEARS PERIOD FROM THE DATE OF JUDGMENT OF TH E HIGH COURT IN FILING THE RECTIFICATION APPLICATION. 7. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS BARRED BY LIMITATION. ACCORDINGLY, THE SAME IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03 RD JANUARY, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 03 RD JANUARY, 2014 PK/- 5 MP NO. 141/COCH/2013 COPY TO: 1. ACIT, CIR.1, KANNUR RANGE, KANNUR 2. SHRI K.V. DAMODARAN, CLOTH MERCHANT, MAIN ROAD, PAYYANNUR 3. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI 4. THE COMMISSIONER OF INCOME-TAX(A)-I, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH