M/s. Vilas Javdekar Eco Homes, Pune V. Deputy Commissioner of Income-Tax, Circle -3, Pune

MA 146/PUN/2023

AI Insights

The case involves M/s. Vilas Javdekar Eco Homes, which filed Miscellaneous Applications (MAs) against a Tribunal order dismissing their appeals as time-barred. The Tribunal had previously noted that the appeals were filed significantly beyond the allowable period and the assessee had not provided any condonation of delay petition or satisfactory explanation for the delay. The Tribunal, upon reviewing the MAs, found no apparent mistake in their earlier decision and emphasized that the applications were essentially seeking a review of the decision, which is not permissible under section 254(2) of the Income Tax Act.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 138114 (ITAT-PUNE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 18-06-2023
• Other Referred Cases: ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., T.S. Balaram, I.T.O vs. M/s. Volkart Brothers, Bombay, CIT Vs. Ramesh Electric & Trading Company, D. Gopinathan Pillai Vs. State of Kerala & Anr., P.K. Ramanathan Vs. State of Kerala, and anor.
• Laws Referred To: Section 254(2) of the Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE „B‟ BENCHES :: PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER & SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A.Nos. 145 & 146/PUN/2023 (Arising out of ITA Nos.232 & 233/PUN/2020) (A.Y. 2013-14 & 2014-15) M/s. Vilas Javdekar Eco Homes, 304-305, Siddharth Tower, Sangam Press Road, Kothrud, Pune. PAN: AAEFV 4570 G vs DCIT, Circle-3, Pune. Applicant Respondent Assessee by : None Revenue by : Shri Ramnath P. Murkunde, DR Date of hearing : 15/09/2023 Date of pronouncement : 20/09/2023 O R D E R Per PARTHA SARATHI CHAUDHURY, JM: These Misc. Applications preferred by the assessee emanates from the common order of the Tribunal in ITA Nos. 232 & 233/PUN/2020, dated 31.01.2023 for A.Ys.2013-14 & 2014-15. 2. We have perused the contents of the Misc. Applications and find that assessee has failed to bring-out any case whether at all there is any mistake apparent from record in the order of the Tribunal. The assessee has not pointed out any apparent mistake in the order of the Tribunal and in fact through these MAs asking for review of the decision of the Tribunal. 3. We find that there are series of decisions by the Hon'ble Supreme Court as well as the Hon'ble High Courts expounding scope of MA Nos.145 & 146/PUN/2023 M/s. Vilas Javdekar Eco Homes 2 exercising powers u/sec. 254(2) of the Act. We do not deem it necessary to recite and recapitulate all of them, but suffice to say that core of all these authoritative pronouncements is that power for rectification u/sec. 254(2) of the Act can be exercised only when mistake, which is sought to be rectified, is an obvious and patent mistake, which is apparent from the record and not a mistake, which is required to be established by arguments and long drawn process of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon'ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd., 262 ITR 146 which has been upheld by the Hon'ble Supreme Court reported in 305 ITR 227. The Hon‟ble Supreme Court in the case of T.S. Balaram, I.T.O vs. M/s. Volkart Brothers, Bombay (1971) 82 ITR 5 (SC) had held as follows: “A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long dawn process of reasoning on points on which there may conceivably be two opinions”. 4. The Hon'ble Jurisdictional High Court in the case of CIT Vs. Ramesh Electric & Trading Company reported in 203 ITR 497 has held that the scope of section 254(2) is limited to rectification of mistake apparent from record itself and not rectification in error of judgment. The relevant observations of the Hon'ble High Court are as under: “The Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the MA Nos.145 & 146/PUN/2023 M/s. Vilas Javdekar Eco Homes 3 Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself.” We are of the considered view that in the guise of rectification, the assessee is seeking review of the order of Tribunal, which is beyond the scope of powers as envisaged u/s. 254(2) of the Act. 5. That, as evident from the order of the Tribunal, on the scheduled date, none appeared for the assessee and the Tribunal has observed as follows:- “2. At the time of hearing none appeared for the assessee. An adjournment petition was filed on a very frivolous pointless, casual and careless ground and as per the Hon’ble Supreme Court directives such ground as raised by the assessee is not acceptable for granting adjournment and prolong the matter for adjudication. Therefore, these cases were heard considering the submissions of the ld. D.R and the materials/documents available on record.” Further, the Tribunal had observed that in ITA No.232/PUN/2020 for A.Y. 2013-14 the case was time barred by 499 days and in ITA No.233/PUN/2020 was time barred by 581 days. In that regard, the Tribunal had observed and held as follows:- “3. The appeal in ITA No. 232/PUN/2020 for A.Y. 2013-14 is time- barred by 499 days and the appeal in ITA No. 233/PUN/2020 is time- barred by 581 days. The assessee has not filed any condonation of delay petition or sworn in affidavit before the Notary Public Government of India or any equivalent document explaining the reasons for delay in filing these appeals. 4. We find Hon’ble Supreme court in the case of D. Gopinathan Pillai Vs. State of Kerala & Anr., decided on 15-01-2007 deliberating upon the issue of Limitation Laws, opined that the mandated provision of limitation has to be construed strictly. When a mandatory provision is not complied with and the delay is not properly, satisfactorily and convincingly explained the court cannot condone the delay only on sympathetic ground. In this case, there has been inordinate delay and no reason whatsoever was given for condonation of such delay. It was held that as per the settled principle of law, the delay cannot be condoned without assigning any reasonable, satisfactory, sufficient and proper reason. Reverting to the facts of the present case before MA Nos.145 & 146/PUN/2023 M/s. Vilas Javdekar Eco Homes 4 us, the assessee has not filed any condonation petition nor any affidavit explaining the reasons for such delay. Therefore, these appeals filed by the assessee deserve to be dismissed on the threshold on the ground of limitation itself. 5. We further find strength from another decision of the Hon’ble Apex Court in the case of P.K. Ramanathan Vs. State of Kerala, and anor., dated 19-09-1997 where Hon’ble Kerala High Court had exercised discretion for extending the period of limitation on equitable grounds and this order was set aside by the Hon’ble Supreme Court holding that the Law of imitation may harshly effect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. 6. Considering these binding decisions, both the appeals of the assessee are dismissed. 7. In the result, both the appeals of the assessee are dismissed.” Therefore, there is no mistake apparent on record in the order of the Tribunal as already observed and examined. The assessee is trying for review of the decision which is not permissible u/sec. 254(2) of the Act. In view thereof, both the Misc. Applications filed by the assessee stands dismissed devoid of any merits. 6. In the result, both the Misc. Applications of the assessee are dismissed. Order pronounced in open Court on 20 th September, 2023. Sd/- Sd/- (INTURI RAMA RAO) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated : 20 th September, 2023 vr/- MA Nos.145 & 146/PUN/2023 M/s. Vilas Javdekar Eco Homes 5 Copy to : 1. The Appellant. 2. The Respondent. 3. The Pr. CIT concerned. 4. The DR, ITAT, “B” Bench Pune. 5. Guard File. By Order // TRUE COPY // Senior Private Secretary ITAT, Pune.