ACIT, Alwar V. GILLETTE INDIA LIMITED, Alwar

MA 23/JPR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4028 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Time period of passing order; Condonation of delay; Set aside
• Section: 142(1); 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH A, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO. 23/JP/2019 ( ARISING OUT OF VK;DJ VIHY LA-@ IT (TP) A. NO. 01/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, ALWAR CUKE VS. M/S GILLETTE INDIA LTD., SPA-65A, INDUSTRIAL AREA, BHIWADI, DISTT. ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACI3924J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI ASHOK KHANNA (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P. C. PARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/07/2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19/08/2019. VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH DECISION IN IT(TP)A NO. 1 & 2/JP/2016 DATED 04/07/2017. 2. AT THE OUTSET, IT IS NOTED THAT THE MISC. APPLIC ATION FILED BY THE REVENUE IS BARRED BY THE LIMITATION AS PROVIDED IN SECTION 254 (2) OF THE ACT WHICH READS 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 VIE W 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 BRO UGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABI LITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TR IBUNAL HAS GIVEN NOTICE TO THE 2 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD 3. IN THIS REGARD, THE LD. DR SUBMITTED THAT ON REC EIVING THE ORDER OF HONBLE ITAT, JAIPUR THE ASSESSING OFFICER, CIRCLE-2, ALWAR HAS INTIMATED TO DRP-1, NEW DELHI REGARDING ORDER OF ITAT WITH REQUEST TO EXAMINE THE ISSUE AS THIS MATTER WAS REMANDED BACK TO THE DRP. VIDE THIS OFFICE LETTER D ATED 12.09.2017 AND 10.10.2017. BUT THE DRP HAS NOT RESPONDED TO THESE LETTERS WELL IN TIME. MEANWHILE, SET ASIDE PROCEEDINGS HAVE BEEN INITIATED BY THE AO AND NOTIC E U/S 143(2) & 142(1) HAVE BEEN ISSUED TO THE ASSESSEE COMPANY. THEREAFTER, TH E DRP HAS GIVEN ITS RESPONSE ON THE MATTER VIDE LETTER NO. 259 DATED 15.10.2018. IN WHICH THE DRP HAS CONVEYED THAT MISCELLANEOUS APPLICATION NEEDS TO BE FILED ON THE GROUND THAT THE DRP IS NEITHER EMPOWERED TO ISSUE ANY DIRECTION U/S 144C(5 ) OF THE ACT IN A CASE SET ASIDE BY THE HONBLE ITAT DIRECTLY TO THE DRP, NOR IS THE RE ANY LIMITATION LAID DOWN BY THE ACT FOR ISSUANCE OF ANY DIRECTION U/S 144C(5) OF TH E ACT. IT IS HEREBY PRAYED THAT DELAY MAY KINDLY BE CONDONED FOR FILING MA AS FILIN G THE SAME HAS ALREADY BEEN TIME BARRED DUE TO LATE RESPONSE FROM THE DRP. 4. THE LD. AR HAS OBJECTED TO THE MISC. APPLICATION SO FILED BY THE REVENUE STATING THAT THERE IS NO PROVISION UNDER LAW WHEREI N THE DELAY IN FILING THE MISC. APPLICATION CAN BE CONDONED BY THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE CASE IN HAND, THERE IS NOTHING TO SH OW THAT THE REVENUE DID NOT RECEIVE THE ORDER SENT BY THE REGISTRY WELL IN TIME . SINCE THE PROVISIONS OF SECTION 3 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR 254(2) HAS PRESCRIBED THE LIMITATION FOR RECTIFICAT ION OF MISTAKE WITHIN A PERIOD OF 6 (SIX) MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED, THEREFORE, THE PRESENT MISCELLANEOUS APPLICATION FILED BELATEDLY W HERE THERE IS A DELAY OF 416 DAYS IS NOT MAINTAINABLE. THE LIMITATION FOR RECTIFICAT ION OF MISTAKE IS PROVIDED IN THE IT ACT ITSELF BUT THERE IS NO PROVISION FOR CONDONATIO N OF DELAY, IF ANY, IN FILING THE MISCELLANEOUS APPLICATION. THEREFORE, THE TRIBUNAL HAS NO JURISDICTION/POWER TO CONDONE THE DELAY IN FILING THE MISCELLANEOUS APPLI CATION. THE TRIBUNAL HAS TAKEN A CONSISTENT VIEW ON THIS ISSUE AND IN CASE OF SHRI V INOD KUMAR SINGH VS. ITO IN M.A. NO. 12/JP/2018, THE COORDINATE BENCH OF THIS TRIBUN AL VIDE ORDER DATED 06.02.2018 HAS CONSIDERED AN IDENTICAL ISSUE OF DELAY IN FILIN G THE MISCELLANEOUS APPLICATION AND MAINTAINABILITY OF SUCH APPLICATION IN PARA 4 AS UN DER :- 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE CERTIFIED COPY OF THE IMPUG NED ORDER WAS ISSUED AND SEND TO THE ASSESSEE ON 21.04.2017. WE FURTHER NOTE THAT THE ASSESSEE PROVIDED ADDRESS FOR COMMUNICATION IN THE FORM NO. 36 AS THE ADDRESS OF THE COUNSEL WHO WAS AUTHORIZED AND REPRESENTING THE ASS ESSEE IN THE APPEAL. THE ASSESSEE NOW COME UP WITH THE PLEA THAT THE ASSESSE E HAS TAKEN THE CERTIFIED COPY ONLY ON 08.09.2017 WHICH IS ONLY ANOTHER COPY OF THE IMPUGNED ORDER PROVIDED TO THE ASSESSEE ON HIS REQUEST. HOWEVER, O NCE THE ORDER WAS DULY SEND TO THE ASSESSEE AT THE GIVEN ADDRESS THEN, THI S PLEA OF THE ASSESSEE CANNOT BE ACCEPTED. UNDISPUTEDLY THE PRESENT MISCEL LANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE BEYOND THE PERIOD OF 6 M ONTHS FROM THE END OF THE MONTH IN WHICH THE IMPUGNED ORDER WAS PASSED. THUS, IN THE ABSENCE OF ANY PROVISION U/S 254(2) OR ANY OTHER PROVISIONS OF THE INCOME TAX ACT TO CONDONE THE DELAY IN FILING THE MISCELLANEOUS APPLI CATION WE DO NOT FIND ANY SUBSTANCE IN THE PLEA OF THE ASSESSEE TO CONDONE TH E DELY. THE COORDINATE BENCH OF THIS TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE OF MAINTAINABILITY OF THE MISCELLANEOUS APPLICATION FILED BEYOND THE PERI OD OF LIMITATION IN CASE OF 4 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR ITO VS. SHRI RAM RATAN MODI IN MA NO. 93/JP/2017 V IDE ORDER DATED 27.12.2017 AS 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 PRESENT MISCEL LANEOUS PETITION WAS FILED BY THE REVENUE FOR RECALLING OF THE ORDER DATED 18.12.2015 AND THEREFORE, AS PER UN-AMENDED PROVISIONS OF SECT ION 254(2) OF THE ACT, THE LIMITATION PERIOD PROVIDED FOR RECTIFICATI ON OF THE MISTAKE WAS 4 YEARS FROM THE DATE OF ORDER. HOWEVER, THE PROVISIO NS OF SECTION 254(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 PAS SED. FOR READY REFERENCE, WE QUOTE SECTION 254(2) AS UNDER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 72 [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 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 ASS ESSEE OR THE 74 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECT ION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPP ORTUNITY OF BEING HEARD : 5 [ 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.] 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 WHICH 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, PAS S AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APPEAL FILED UNDE R 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 5 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR DISPOSE OF THE APPEAL WITHIN THE SAID PERIOD OF STA Y 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 O F STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, THAT THE AGGREGATE OF THE PERIOD ORIGINALL Y ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS AND THE AP PELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE PERIOD OR PE RIODS OF STAY SO EXTENDED OR ALLOWED: 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN T HE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE PERIO D OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXPIRY OF SUCH PERIOD OR PE RIODS, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABL E 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 WH ICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED HAS BEEN REDU CED FROM 4 YEARS 6 MONTHS. THERE IS NO QUARREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CANNOT BE GIVEN EFFECT RETROSPECTIVE LY SO AS TO TAKE WAY OF RIGHT OF THE PARTIES TO FILE THE APPLICATION OF RECTIFICATION. THE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERA TIVE BANK LTD. VS. UNION OF INDIA(SUPRA) HAS OBSERVED IN PARAS 9 AND 1 0 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 EFFECT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPECTIVE EFFE CT 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 EXTINGUISHING THE RIGHT T O FILE AN APPEAL. 6 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR THEREFORE, THE HONBLE HIGH COURT HAS OBSERVED THAT THE AMENDMENT IN THE SAID PROVISIONS IS NOT APPLICABLE WITH RETROSPE CTIVE EFFECT OTHERWISE IT WOULD EXTINGUISH THE RIGHT OF THE APPLICANT WITH RETROSPECTIVE EFFECT. HENCE, TO THE EXTENT OF THE APPLICABILITY OF THE AM ENDMENT PROSPECTIVELY WE DO AGREE WITH THE LD. DR, HOWEVER SINCE THE AMENDMENT CAME INTO FORCED W.E.F. 01.06.2016 THEN A FTER THE SUBSTITUTION OF THE PROVISION 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 THE MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND SINCE THE ORDER WAS PASSED PRIOR TO THE AMENDM ENT, THEREFORE, THE SAID PERIOD OF LIMITATION WILL BE AVAILABLE TO THE ASSESSEE FROM THE DATE OF AMENDMENT I.E. ON 01.06.2016 FOR A PERIOD 6 MONTHS. THUS, THE PRESENT MISCELLANEOUS PETITION FILED BY THE REV ENUE ON 22.05.2017 IS BEYOND THE PERIOD OF LIMITATION WHICH HAS EXPIRE D ON 30.11.2016. WE MAY CLARIFY THAT IN CASE THE IMPUGNED ORDER IS PRIO R TO THE AMENDMENT W.E.F. 01.06.2016 THEN THE LIMITATION PERIOD OF 6 MONTHS WOULD RECKON FROM 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NOT CURTAIL BY THE SUBSEQUENT AMENDMENT. WE FURTHER, NOTE THAT THE BAN GALORE BENCHES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 166 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 MI SCELLANEOUS PETITION ON 10.03.2017 FOR RECALLING OF ORDER OF THE TRIBUNA L DATED 04.01.2016. THE PROVISION OF RECTIFICATION 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 SUCH 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 ANY MI STAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECT ION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO IT S NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER: PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE 7 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS IN TENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD: [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB- SECTION ON OR AFTER THE 1ST DAY OF OCTOBER, 1998, S HALL 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. 01.06.2016, THE LIMITATION PERIOD FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD IS PROVIDED ONLY FOR 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND, THE IMPUGNED ORDER WAS PASSED BY THE TRIBUNAL ON 04.01.2016 AND AFTER THE AMENDMENT IN SECTION 254(4) W.E.F. 01.06.2016, THESE MISCELLANEO US PETITION WAS REQUIRED TO BE FILED BEFORE 31.07.2016. PRIOR TO THE AMENDME NT, THE LIMITATION WAS PROVIDED AS 4 YEARS FOR RECTIFICATION OF MISTAKE AP PARENT FROM RECORD AND THEREFORE THERE WAS NO PROVISION IN THE INCOME-TAX ACT FOR CONDONATION OF ANY DELAY OF ANY PETITION FOR RECTIFICATION OF MISTAKE FILED AFTER THE SAID PERIOD OF 4 YEARS. EVEN OTHERWISE, THE LIMITATION OF 4 YEARS WA S MORE THAN THE LIMITATION FOR FILING OF THE SUIT AND AS PER THE GENERAL STATU TE I.E., THE LIMITATION ACT WHERE THE LIMITATION FOR INSTITUTION OF SUIT IS PRO VIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND THEREFORE THE RE WAS NO PROVISION EVEN IN THE LIMITATION ACT FOR CONDONATION OF DELAY IN R ESPECT OF DELAY IN FILING THE SUIT. SINCE THE LIMITATION FOR RECTIFICATION OF MIS TAKE IS PROVIDED IN THE INCOME- TAX ACT ITSELF, THEREFORE THE PROVISIONS OF LIMITAT ION ACT ARE NOT APPLICABLE SO FAR AS THE LIMITATION PROVIDED IN THE INCOME-TAX AC T. THIS PRINCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPECIAL S TATUTE, THEN THE GENERAL STATUTE IS NOT APPLICABLE TO THE EXTENT OF THE PROV ISION PROVIDED IN THE SPECIAL STATUTE. WE FIND THAT PRIOR TO THE AMENDMENT THE LI MITATION FOR RECTIFICATION OF MISTAKE WAS 4 YEARS AS PROVIDED UNDER SECTION 254(2 ) AND THEREFORE THERE WAS NO QUESTION OF PROVIDING ANY PROVISION OR POWER TO THE INCOME TAX APPELLATE TRIBUNAL TO CONDONE THE DELAY AFTER THE E XPIRY OF SUCH 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 A ND IN CASE OF A DELAY IN APPLYING FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD, THE PARTY WHO IS AGGRIEVED BY THE ORDER OF THIS TRIBUNAL SUFFERING F ROM MISTAKE WILL BE SUBJECTED TO A GREAT HARDSHIP AND DEPRIVATION OF VA LUABLE RIGHT OF PURSUING THE APPEAL BEFORE THE TRIBUNAL. BUT IN THE ABSENCE OF ANY PROVISION GIVING POWER OR JURISDICTION TO THIS TRIBUNAL TO CONDONE T HE DELAY IN FILING THE PETITION 8 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR FOR RECTIFICATION OF THE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCEED STRICTLY AS PER THE PROVISION S 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 NOT DECI DED THE APPEALS OF THE ASSESSEE ON MERIT BUT DISMISSED THE SAME IN LIMINE FOR WANT OF PROSECUTION. HOWEVER, THE QUESTION OF RECTIFICATION OF MISTAKE C ANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS FOUND TO BE MAINTAINABLE. THE MISCELLANEOUS PETITION FILED BY T HE ASSESSEE IS BEYOND THE PERIOD OF 6 MONTHS FROM 04.01.2016 AND THEREFORE TH E 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 OMISSION IN THE PROVISION OF ACT WHICH CANNOT BE SUPPLIED BY US WHEN THERE IS NO AMBIGUITY IN THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPN. LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN PARAS 16 TO 18 AS UNDER: '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETITIONER T HAT THE POWER OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT IS ONLY TO RECTIFY AN ERROR APPARENT FROM THE RECORD. IT DOES NOT EMPOWER THE TRIBUNAL TO RECALL ITS EARL IER ORDER DATED DECEMBER 6, 2007, FOR WHICH THE MISCELLANEOUS APPLICATION WAS FILED ON AUGUST 6, 2012. IT WAS SUBMITTED ON BEHALF OF THE P ETITIONER THAT THE APPLICATION UNDER SECTION 254(1) OF THE ACT WOU LD BE THE ONLY PROVISION 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 B UT CANNOT BE RECALLED. WE FIND THAT THERE IS AN ERROR APPARENT ON RECORD AND THE MISCELLANEOUS APP LICATION IS TO CORRECT THE ERROR APPARENT FROM THE RECORD. THE CONSEQUENCE OF SUCH RECTIFICATION APPLICATION BEING ALLOWED MAY LEAD TO A FRESH HEARING IN THE MATTER AFTER HAVING RECALLED THE ORIGINAL ORDER . HOWEVER, THE RECALL, IF ANY, IS ONLY AS A CONSEQU ENCE OF RECTIFYING THE ORIGINAL ORDER. IT IS PERTIN ENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT PROHIBIT TH E RECALL OF AN ORDER. IN FACT THE POWER/JURISDICTION OF THE TRIBUNAL TO RECALL AN ORDER ON RECTIFICATION APPLICATION MADE UNDER SECTION 254(2) OF THE ACT IS NO LONGER RES INTEGRA . THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX CO URT IN ASSTT. CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 WHICH HELD THAT THOUGH THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER, YET IT HAS JURISDICTION TO RECTIFY ANY MISTAKE APPARENT ON THE FACE OF THE RECORD AND AS A CONSEQUENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECAL L ITS ORDER. IN THE ABOVE CASE, BEFORE THE APEX COURT ON OCTOBER 27, 2000, THE TRIBUNAL DI SMISSED THE APPEAL OF STOCK EXCHANGE HOLDING THAT IT WAS NOT EN TITLED TO EXEMPTION UNDER 9 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR SECTION 11 READ WITH SECTION 12 OF THE ACT. ON NOVE MBER 13, 2000, THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATI ON UNDER SECTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATE D SEPTEMBER 5, 2001, ALLOWED THE APPLICATION AND HELD THAT THERE WAS A M ISTAKE APPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION. ACCORDINGLY, T HE TRIBUNAL RECALLED ITS ORDER DATED OCTOBER 27, 2000, FOR THE PURPOSE OF ENTERTAI NING THE APPEAL AFRESH. THE REVENUE FILED A WRIT PETITION IN THE GUJARAT HI GH COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001. THE ABOVE CHALLENGE BY THE REVENUE WAS TURNED DOWN BY THE GUJARAT H IGH COURT. THE REVENUE CARRIED THE MATTER IN APPEAL TO THE APEX COURT WHICH ALSO DISMISSED THE A PPEAL OF THE REVENUE. THE APEX COURT OBSERVED THAT THE TRIBUNAL IN ITS ORIGIN AL ORDER WHILE DISMISSING THE STOCK EXCHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE B IN DING DECISIONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECT ED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPREME COURT HELD T HAT THE RECTIFICATION OF AN ORDER STANDS ON THE FUNDAMENTAL PRINCIPLE THAT JUST ICE IS ABOVE ALL AND UPHELD THE EXERCISE OF POWER UNDER SECTION 254(2) OF THE A CT 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 A PPLICATION WOULD BE AN APPLICATION FOR RECTIFICATIO N OF THE ORDER DATED DECEMBER 6, 2007, AND WOULD STAN D GOVERNED BY SECTION 254(2) OF THE ACT. 17. IN THE FACTS OF THE PRESENT CASE THERE CAN BE NO DE NIAL THAT THE ORDER DATED DECEMBER 6, 2007, SUFFERS F ROM AN ERROR APPARENT FROM THE RECORD. THE ERROR IS IN HAVING IGNORED THE MANDATE OF RULE 24 OF THE TRIBUNAL RULES WHICH REQUIRED THE TRIBUNAL TO DISPOSE OF THE MATTER ON T HE MERITS AFTER HEARING THE RESPONDENTS. IN THESE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOULD BE UNDER SECTION 254(2) OF THE ACT. THE RECALL OF AN O RDER WOULD WELL BE A CONSEQUENCE OF RECTIFYING AN ORDER UNDER SECTION 25 4(2) OF THE ACT. IN THESE CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE TRIBUNAL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APP ELLANT 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 RECTIFIED. 18. BEFORE CONCLUDING, WE WOULD LIKE TO MAKE IT CLEAR THAT AN ORDER PASSED IN BREACH OF RULE 24 OF THE TRIBUNAL RULES, IS AN IRRE GULAR ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS ASSUMED THAT THE ORDE R IN BREACH OF RULE 24 OF THE TRIBUNAL RULES IS AN VOID ORDER, YET THE SAME W OULD CONTINUE TO BE BINDI NG TILL IT IS SET ASIDE BY A COMPETENT TRIBUNAL. IN FA CT, THE APEX COURT IN THE SULTAN 10 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR SADIK V. SANJAY RAJ SUBBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDER: 'PATENT AND LATENT INVALIDITY IN A WELL KNOWN PASSA GE LORD RADCLIFFE SAID: 'AN ORDER, EVEN IF N OT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT L EGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NECESSARY PROCEEDINGS ARE TAKEN AT LAW TO ESTABLISH THE CAUSE OF INVALIDITY AND TO GET IT QUASHED OR OTHERWISE UPSET, IT WIL L REMAIN AS EFFECTIVE FOR ITS OSTENSIBLE PURPOSE AS THE MOST IMPECCABLE OF ORDERS .' THIS MUST BE EQUALLY TRUE EVEN WHERE THE 'BRAND OF INVALIDITY' IS PLAINL Y VISIBLE: FOR THERE ALSO THE ORDER CAN EFFECTIVELY BE RESISTED IN LAW ONLY BY OB TAINING 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 QUESTION OF LIMITATION. THE COMPROMISE DECREE, AS INDICATED HER EIN BEFORE, EVEN IF VOID WAS REQUIRED TO BE SET ASIDE. A CONSENT DECREE AS IS WELL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SUCH A DECREE MUST BE SET ASIDE IF IT HAS BEEN PASSED IN VIOLATION OF LAW. FOR THE SAID PURPOSE, THE PROVISI ONS CONTAINED IN THE LIMITATION ACT, 1963, WOULD BE APPLICABLE. IT IS NO T THE LAW THAT WHERE THE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE AT TRACTED 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 PROVIDED IN SECTIO N 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 THI S 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 IT FOR N ON-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 VIEW OF THE REASONS GIVEN HEREINABOVE, WE FIND T HE TRIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS APPLICATION BY ITS ORD ER DATED APRIL 10, 2013, AS BEING BEYOND THE PERIOD OF FOUR YEARS AS P ROVIDED UNDER SECTION 254(2) OF THE ACT. 21. ACCORDINGLY, THE PETITION IS DISMISSED WITH NO ORDE R AS TO COSTS.' 11 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR 8. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHA RAT PETROLEUM CORPN. LTD. (SUPRA), WE HOLD THAT THE MISCELLANEOUS PETITI ON FILED BY THE ASSESSEE ARE BEYOND THE PERIOD OF LIMITATION AS PROVIDED UNDER S ECTION 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 DECISION OF THE BANG ALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCELLANEOUS PETITION FILED B Y THE REVENUE ON 22.05.2017 IS BEYOND THE PERIOD OF LIMITATION EXPIR ED ON 30.11.2016 AND ACCORDING THE SAME IS NOT MAINTAINABLE. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE MISCELLANEOUS APPLICATION IS BARRED BY LIMITATION A ND FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL IN CASE OF ITO VS. SHRI RAM RATAN MODI (SUPRA) WE DISMISSED THE MISCELLANEOUS APPLICATION AS NOT MAIN TAINABLE BEING BARRED BY LIMITATION. ACCORDINGLY, WHEN THERE IS NO PROVISION OF CONDONAT ION OF DELAY FOR FILING OF THE MISCELLANEOUS APPLICATION, THEN THE MISCELLANEOUS A PPLICATION FILED BELATEDLY IS NOT MAINTAINABLE BEING BARRED BY LIMITATION PROVIDED UN DER SECTION 254(2) OF THE ACT AND ACCORDINGLY, THE SAME IS DISMISSED. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REV ENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 19/08/2019 . SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 19/08/2019 GANESH KR. VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 12 MA NO. 23/JP/2019 ACIT, ALWAR VS. M/S GILLETTE INDIA LTD., ALWAR 1. THE APPELLANT- ACIT, CIRCLE-2, ALWAR 2. THE RESPONDENT M/S GILLETTE INDIA LTD., ALWAR 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 23/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR