KABIR INFOSLUTIONS INDIA PRIVATE LIMITED , MUMBAI V. INCOME TAX OFFICER 15(2)(1), MUMBAI

MA 287/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8175 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABDUL KAKEEDR
• Assessee Lawyers: HARSHAVARDHANA DATAR
• Keywords: Principle of natural justice; Period of limitation; Right to appeal
• Section: 15

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, MA NO.287/MUM/2018 (ARISING OUT OF ITA NO.2121/MUM/2017) ASSESSMENT YEAR: 2009-10 M/S. KABIR INFOSOLUTION INDIA PVT. LTD. (FORMERLY KNOWN AS KABIR TECHNOLOGY PVT. LTD.), B-103, BHAICHAND TEXTILES MILLS COMPOUND, ABOVE UNION BANK, L.B.S. MARG, BHANDUP (WEST), MUMBAI-400 078 / VS. INCOME TAX OFFICER 15(2)(1), MUMBAI / ASSESSEE / REVENUE P.A. NO.AACCK4637N ' # $ / ASSESSEE BY SHRI HARSHAVARDHANA DATAR- AR ' # $ / REVENUE BY SHRI ABDUL KAKEE-DR / DATE OF HEARING 28/12/2018 $ / DATE OF ORDER: 28/12/2018 MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 2 $ / O R D E R BY WAY OF THIS MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (HEREINA FTER THE ACT), THE ASSESSEE SEEKS RECALLING OF AN EX-PARTE O RDER DATED 31/08/2017 ON THE GROUND THAT THE TRIBUNAL PASSED THIS ORDER ON 31/08/2017 AND DISPATCHED THE ORDER ON 07/11/2017, FOR WHICH THE LD. COUNSEL FOR THE ASSESSEE FILED THE COPY OF THE RECORD FROM THE DISP ATCH SECTION. IT WAS PLEADED THAT THE ORDER OF THE TRIBU NAL WAS RECEIVED BY THE ASSESSEE IN THE MONTH OF NOVEMBER, 2017 AND THIS MISCELLANEOUS APPLICATION WAS FILED ON 18/04/2018, THEREFORE, IT IS WITHIN TIME. RELIANCE WAS PLACED UPON THE DECISION FROM HON'BLE GUJARAT HIGH COURT IN THE CASE OF PETERPLAST SYNTHENTICS PVT. LTD. VS ACIT (2014) 44 TAXMAN.COM 302 (GUJ.) AND OTHER CASES OF THE TRIBUNAL, WHICH ARE AVAILABLE IN THE PAPER BOOK RUN NING INTO 1 TO 23 PAGES. IT WAS ALSO POINTED THAT THE IM PUGNED ORDER IS AN EX-PARTE ORDER, THEREFORE, KEEPING IN V IEW, THE PRINCIPLE OF NATURAL JUSTICE, THE ORDER MAY BE RECA LLED. ON THE OTHER HAND, THE LD. DR, CONTENDED THAT THE ASSE SSEE MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 3 WANTS TO GET THE ORDER OF THE TRIBUNAL REVIEWED, WH ICH IS NOT PERMISSIBLE. IT WAS ALSO POINTED OUT THAT THE D ATE SHOULD BE COUNTED FROM THE DATE WHEN THE ORDER WAS PASSED AND NOT THE RECEIPT OF THIS ORDER. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN VIEW OF THE AFORESAID ORDERS FROM THE TRIBUNAL AND HON'BLE GUJA RAT HIGH COURT, IT SHOULD BE COUNTED FROM THE DATE OF T HE RECEIPT OF THIS ORDER. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. BEFORE AD VERTING FURTHER, WE ARE REPRODUCING HEREUNDER THE RELEVANT PORTION FROM THE ORDER OF THE HON'BLE GUJARAT HIGH COURT (3 64 ITR 16)(GUJ.) FOR READY REFERENCE AND ANALYSIS:- IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND WIT H THE CONSENT OF THE LEARNED ADVOCATES APPEARING ON BEHALF OF THE RESPEC TIVE PARTIES, THE PRESENT PETITION IS TAKEN UP FOR FINAL HEARING TODA Y. 3. BY WAY OF THIS PETITION UNDER ARTICLE 226 OF THE C ONSTITUTION OF INDIA THE PETITIONER-ASSESSEE HAS PRAYED FOR AN APPROPRIA TE WRIT, ORDER OR DIRECTION QUASHING AND SETTING ASIDE THE IMPUGNED O RDER PASSED BY THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD 'B' BENCH, AHMEDABAD (HEREINAFTER REFERRED TO AS 'ITAT') DATED 03/05/201 3 IN M.A. NO. 104/AHD/2012 BY WHICH THE TRIBUNAL HAS DISMISSED TH E SAID APPLICATION ON THE GROUND THAT THE SAME IS BARRED BY LIMITATION AS PROVIDED UNDER SECTION 252(2) OF THE INCOME TAX ACT. 4. THE FACTS LEADING TO THE PRESENT SPECIAL CIVIL APP LICATION, WHICH ARE RELEVANT/NECESSARY FOR DETERMINATION, IN NUTSHELL A RE AS UNDER; MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 4 5. BEING AGGRIEVED AND DISSATISFIED WITH THE ORDER PA SSED BY THE CIT(A) FOR THE ASSESSMENT YEAR 1996-97, THE PETITIONER-ASS ESSEE PREFERRED APPEAL BEFORE THE ITAT AND VIDE IMPUGNED JUDGMENT A ND ORDER DATED 20/02/2007 THE ITAT DISMISSED THE APPEAL, BEING ITA NO. 2116/AHD/2003. THE SAID ORDER OF THE ITAT WAS RECEI VED BY THE PETITIONER-ASSESSEE ON 19/11/2008. AFTER RECEIVING THE ORDER, THE PETITIONER-ASSESSEE PREFERRED MISCELLANEOUS APPLICA TION/RECTIFICATION APPLICATION AGAINST THE JUDGMENT AND ORDER DATED 20 /02/2007 BEFORE THE ITAT ON 09/05/2012 I.E. AFTER A PERIOD OF THREE YEA RS, SIX MONTHS AND TWENTY DAYS FROM THE DATE OF RECEIPT OF THE JUDGMEN T AND ORDER PASSED BY ITAT DATED 20/02/2007 IN ITA NO. 2116/AHD/2003.T HE SAID RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION HAS BEEN DISMISSED BY THE ITAT BY THE IMPUGNED ORDER ON THE GROUND THA T THE SAME IS BARRED BY THE LAW OF LIMITATION AS PROVIDED UNDER S ECTION 252(2) OF THE INCOME TAX ACT BY OBSERVING THAT FROM THE DATE OF T HE ORDER PASSED BY ITAT I.E. 20/02/2007 THE RECTIFICATION APPLICATION HAS BEEN SUBMITTED AFTER A PERIOD OF FOUR YEARS. BEING AGGRIEVED AND D ISSATISFIED WITH THE IMPUGNED ORDER PASSED BY THE ITAT IN DISMISSING THE RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION ON THE GROUND THAT THE SAME IS BARRED BY LIMITATION I.E. BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF PASSING OF THE JUDGMENT AND ORDER PASSED BY THE ITA T, THE PETITIONER- ASSESSEE HAS PREFERRED THE PRESENT SPECIAL CIVIL AP PLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. 6. SHRI MANISH J. SHAH, LEARNED ADVOCATE APPEARING ON BEHALF OF THE PETITIONER HAS VEHEMENTLY SUBMITTED THAT THE ITAT H AS MATERIALLY ERRED IN REJECTING THE RECTIFICATION APPLICATION/MISCELLA NEOUS APPLICATION ON THE GROUND THAT THE SAME IS BARRED BY LAW OF LIMITA TION I.E. BEYOND THE PERIOD OF FOUR YEARS. IT IS SUBMITTED THAT AS SUCH THE RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION WAS SUBMITTED BY THE PETITIONER- ASSESSEE WITHIN A PERIOD OF FOUR YEARS FROM THE DAT E OF RECEIPT OF THE JUDGMENT AND ORDER PASSED BY THE ITAT. IT IS SUBMIT TED THAT THE ITAT HAS MATERIALLY ERRED IN CONSIDERING THE STARTING PO INT OF LIMITATION IN SUBMITTING THE RECTIFICATION APPLICATION/MISCELLANE OUS APPLICATION FROM THE DATE OF THE ORDER PASSED BY THE ITAT AND NOT FR OM THE DATE OF RECEIPT OF THE JUDGMENT AND ORDER PASSED BY THE ITA T. 6.1 SHRI MANISH J. SHAH, LEARNED ADVOCATE APPEARING ON BEHALF OF THE PETITIONER-ASSESSEE HAS HEAVILY RELIED UPON THE FOL LOWING DECISIONS OF THE HON'BLE SUPREME COURT, BOMBAY HIGH COURT AS WEL L AS THIS COURT. ( I ) D. SAIBABA V. BAR COUNCIL OF INDIA [2003] 6 SCC 186; ( II ) PETLAD BULAKHIDAS MILLS CO. LTD. V. RAJ SINGH [1959] 37 ITR 264 (BOM.) ; ( III ) SREE AYYANAR SPG. AND WVG. MILLS LTD. V. CIT [2008] 301 ITR 434/171 TAXMAN 498 (SC) ; MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 5 ( IV ) THE UNREPORTED DECISION OF THIS COURT IN THE CASE O F VADILAL INDUSTRIES LTD. V. UNION OF INDIA 2006 (197) ELT 160 (GUJ.). 6.2 SHRI MANISH SHAH, LEARNED ADVOCATE APPEARING ON BE HALF OF THE PETITIONER-ASSESSEE RELYING UPON THE DECISION OF TH IS COURT IN THE CASE OF VADILAL INDUSTRIES LTD. ( SUPRA ) HAS SUBMITTED THAT WITH RESPECT TO THE ANALOGOUS PROVISIONS IN THE CENTRAL EXCISE ACT, IT IS HELD BY THE DIVISION BENCH OF THIS COURT THAT THE STARTING POIN T OF LIMITATION TO PREFER THE RECTIFICATION APPLICATION WOULD BE FROM THE DATE OF RECEIPT OF THE ORDER, WHICH IS SOUGHT TO BE REVIEWED/RECTIFIED AND NOT FROM THE ACTUAL DATE OF THE ORDER. MAKING THE ABOVE SUBMISSI ONS, IT IS REQUESTED TO ALLOW THE PRESENT SPECIAL CIVIL APPLICATION AND QUASH AND SET ASIDE THE IMPUGNED ORDER PASSED BY THE ITAT AND DIRECT TH E ITAT TO DECIDE AND DISPOSE OF THE RECTIFICATION APPLICATION/MISCEL LANEOUS APPLICATION SUBMITTED BY THE PETITIONER-ASSESSEE IN ACCORDANCE WITH LAW AND ON ITS OWN MERITS. 6.3 SHRI MANISH BHATT, LEARNED COUNSEL HAS APPEARED ON BEHALF OF THE RESPONDENT-REVENUE. AT THE OUTSET, IT IS REQUIRED T O BE NOTED THAT HE IS NOT IN POSITION TO DISPUTE THE PROPOSITION OF LAW L AID DOWN BY THE HON'BLE SUPREME COURT AS WELL AS THIS COURT IN THE AFORESAID DECISIONS TO THE FACT THAT THE STARTING POINT OF LIMITATION T O PREFER THE RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION WOULD BE THE DATE ON WHICH THE PETITIONER-ASSESSEE RECEIVED THE COPY OF THE ORDER OF THE TRIBUNAL, WHICH IS SOUGHT TO BE REVIEWED. HOWEVER HAS REQUESTED TO DISMISS THE PRESENT SPECIAL CIVIL APPLICATION CONSIDERING THE CONDUCT O N THE PART OF THE PETITIONER-ASSESSEE I.E. OF PREFERRING THE RECTIFIC ATION APPLICATION/MISCELLANEOUS APPLICATION AFTER A PERIO D OF THREE YEARS AND SIX MONTHS FROM THE DATE OF RECEIPT OF THE JUDGMENT AND ORDER PASSED BY THE ITAT. IT IS SUBMITTED THAT CONSIDERING THE AFOR ESAID CONDUCT ON THE PART OF THE PETITIONER-ASSESSEE, MORE PARTICULARLY, WHEN ADMITTEDLY THE PETITIONER-ASSESSEE RECEIVED THE ORDER PASSED BY TH E ITAT, WHICH WAS SOUGHT TO BE REVIEWED, ON 19/11/2008 AND THE PETITI ONER-ASSESSEE SUBMITTED THE MISCELLANEOUS APPLICATION ON 09/05/20 12 I.E. AFTER A PERIOD OF THREE YEARS AND SIX MONTHS, IT IS REQUEST ED THAT THIS COURT MAY NOT EXERCISE THE DISCRETION IN FAVOUR OF THE PETITI ONER UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. 7. HEARD SHRI MANISH J. SHAH, LEARNED ADVOCATE APPEAR ING ON BEHALF OF THE PETITIONER-ASSESSEE AND SHRI MANISH BHATT, LEAR NED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT- REVENUE. 7.1 THE SHORT QUESTION, WHICH IS POSED FOR CONSIDERATI ON OF THIS COURT IS, WHETHER THE PERIOD OF LIMITATION TO SUBMIT/PREFER T HE RECTIFICATION APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT WOULD COMMENCE FROM THE JUDGMENT AND ORDER PASSED BY THE TRIBUNAL, WHICH IS SOUGHT TO BE REVIEWED OR THE DATE ON WHICH THE PETI TIONER-ASSESSEE MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 6 ACTUALLY RECEIVED THE JUDGMENT AND ORDER PASSED BY THE TRIBUNAL, WHICH IS SOUGHT TO BE REVIEWED/RECTIFIED?' 8. AS OBSERVED BY THE HON'BLE SUPREME COURT IN THE CA SE OF SREE AYYANAR SPG. AND WVG. MILLS LTD. ( SUPRA ), SECTION 254(2) OF THE INCOME TAX ACT IS IN TWO PARTS. UNDER THE FIRST PAR T, THE APPELLATE TRIBUNAL MAY, AT ANY TIME, WITHIN FOUR YEARS FROM T HE DATE OF THE ORDER, RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND AM END ANY ORDER PASSED BY IT UNDER SUB SECTION (1). UNDER THE SECON D PART OF SECTION 254(2), THE REFERENCE IS TO THE AMENDMENT OF THE OR DER PASSED BY THE TRIBUNAL UNDER SUB SECTION (1) WHEN THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. IT IS OBS ERVED THAT THEREFORE, IN SHORT, THE FIRST PART OF SECTION 254(2) REFERS TO T HE SUO MOTU EXERCISE OF THE POWER OF RECTIFICATION BY THE TRIBUNAL WHEREAS THE SECOND PART REFERS TO RECTIFICATION AND AMENDMENT ON AN APPLICATION BE ING MADE BY THE ASSESSING OFFICER OR THE ASSESSEE POINTING OUT THE MISTAKE APPARENT FROM THE RECORD. IN THE PRESENT CASE, IT IS THE ASS ESSEE, WHO SUBMITTED THE APPLICATION BEFORE THE TRIBUNAL AND, THEREFORE, THE APPLICATION FOR RECTIFICATION WAS REQUIRED TO BE MADE WITHIN A PERI OD OF FOUR YEARS. IN THE PRESENT CASE, THE TRIBUNAL PASSED THE JUDGMENT AND ORDER ON 20/02/2007, WHICH IS SOUGHT TO BE RECTIFIED, WHICH HAS BEEN ADMITTEDLY RECEIVED BY THE ASSESSEE ON 19/11/2008. THE PETITIO NER-ASSESSEE PREFERRED THE APPLICATION ON 09/05/2012 I.E. AFTER A PERIOD OF THREE YEARS, SIX MONTHS AND TWENTY DAYS FROM THE DATE OF RECEIPT OF THE JUDGMENT AND ORDER PASSED BY THE TRIBUNAL DATED 20/02/2007, HOWEVER, BEYOND THE PERIOD OF FOUR YEARS FROM THE ACTUAL DATE OF THE JU DGMENT AND ORDER PASSED BY THE TRIBUNAL I.E. 20/02/2007. THE TRIBUNA L HAS REJECTED THE SAID MISCELLANEOUS APPLICATION SOLELY ON THE GROUND THAT THE SAID APPLICATION HAS BEEN PREFERRED BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF THE JUDGMENT AND ORDER PASSED BY THE TRIBUN AL I.E. 20/02/2007. ON THE OTHER HAND, IT IS THE CASE ON BEHALF OF THE PETITIONER-ASSESSEE THAT THE TRIBUNAL OUGHT TO HAVE CONSIDERED THE STARTING POINT OF LIMITATION FROM 19/11/2008 I.E. FROM THE DATE OF ACTUAL RECEIP T OF THE JUDGMENT AND ORDER PASSED BY THE TRIBUNAL, WHICH IS SOUGHT TO BE REVIEWED. 9. UNDER THE CIRCUMSTANCES, THE SHORT QUESTION, WHICH IS POSED FOR CONSIDERATION OF THIS COURT IS, WHAT WILL BE THE DA TE OF COMMENCEMENT OF THE PERIOD OF LIMITATION OF FOUR YEARS AS PROVID ED UNDER SECTION 254(2) OF THE INCOME TAX ACT? I.E. WHETHER TO CONSI DER THE DATE OF THE JUDGMENT AND ORDER PASSED BY THE TRIBUNAL, WHICH IS SOUGHT TO BE REVIEWED OR THE ACTUAL DATE OF THE JUDGMENT AND ORD ER RECEIVED BY THE ASSESSEE? 10. IN THE CASE OF PETLAD BULAKHIDAS MILLS CO. LTD. ( SUPRA ) WHILE CONSIDERING THE EXPRESSION 'ORDER' IN SECTION 33A(2 ) OF THE INCOME TAX ACT, THE BOMBAY HIGH COURT HAS HELD THAT THE EXPRES SION 'ORDER' IN SECTION 33A(2) OF THE INCOME TAX ACT MEANS AN ORDER OF WHICH THE MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 7 PARTY AFFECTED HAS ACTUAL OR CONSTRUCTIVE NOTICE. I N THE SAID DECISION, THE BOMBAY HIGH COURT HAS OBSERVED AND HELD AS UNDER; 'WHAT WE HAVE TO DECIDE IS WHAT IS THE MEANING TO B E ATTACHED TO THE WORD 'ORDER' USED IN THE EXPRESSION 'FROM THE DATE OF THE ORDER'. IF 'ORDER' MEANS A UNILATERAL ARRIVING AT A DECISION B Y THE APPELLATE ASSISTANT COMMISSIONER WITHOUT THE PERSON AFFECTED HAVING ANY KNOWLEDGE OF THAT DECISION, THEN UNDOUBTEDLY LIMITA TION WOULD BEGIN TO RUN FROM THE DATE WHEN THE APPELLATE ASSISTANT COMM ISSIONER CHOOSES TO PASS THE ORDER. IN THIS VIEW OF THE CASE, THE AP PELLATE ASSISTANT COMMISSIONER MAY MAKE THE ORDER, PUT IT IN A DRAWER , FORGET ABOUT IT, AND IF A YEAR HAS PASSED AFTER IT THE RIGHT OF THE ASSESSEE TO GO IN REVISION WOULD BE BARRED. NOW THAT SEEMS TO US TO BE AN ENTI RELY UNTENABLE CONTENTION. IF THE LEGISLATURE GAVE THE RIGHT OF RE VISION TO THE ASSESSEE UNDER SECTION 33A IT WAS AN EFFECTIVE RIGHT AND IF THE LEGISLATURE PROVIDED A PERIOD OF LIMITATION THAT PERIOD MUST EQ UALLY BE AN EFFECTIVE PERIOD. WHEN WE SAY 'EFFECTIVE' WHAT WE MEAN IS THA T THE WHOLE PERIOD MUST BE PERMITTED TO THE PERSON AFFECTED BY THE ORD ER WITHIN WHICH HE CAN PREFER THE APPLICATION FOR REVISION. THE ASSESS EE SHOULD KNOW THAT HE HAS A YEAR'S TIME WITHIN WHICH TO MAKE UP HIS MI ND WHETHER HE SHOULD APPLY FOR REVISION OR NOT. IF MR. JOSHI'S CO NTENTION WERE TO BE ACCEPTED, WE WOULD BE DRIVEN TO THIS EXTRAORDINARY CONCLUSION THAT THE PERIOD OF LIMITATION PROVIDED BY THE LEGISLATURE CO ULD BE CUT DOWN BY THE ACTION OF THE APPELLATE ASSISTANT COMMISSIONER. THE APPELLATE ASSISTANT COMMISSIONER COULD AT HIS SWEET WILL DETE RMINE WHAT THE PERIOD OF LIMITATION WAS. HE NEED NOT PROMULGATE TH E ORDER FOR A MONTH, TWO MONTHS, OR SIX MONTHS, AND THE PERIOD OF LIMITA TION WOULD DEPEND UPON WHEN HE CHOSE TO INTIMATE TO THE PARTY AFFECTE D THE NATURE OF HIS ORDER. SURELY THAT COULD NOT HAVE BEEN THE INTENTIO N OF THE LEGISLATURE.' IT IS FURTHER OBSERVED BY THE BOMBAY HIGH COURT IN THE SAID DECISION THAT THE RIGHT OF APPEAL IS GIVEN TO AN ASSESSEE AG AINST THE ORDER, AND THAT RIGHT OF APPEAL CAN ONLY BE EFFECTIVELY EXERCISED I F THE PARTY AFFECTED HAS KNOWLEDGE OF THAT ORDER. 10.1 WHILE DEALING WITH THE PROVISION OF LIMITATION FOR FILING REVIEW/REFERENCE/APPEAL IN THE ADVOCATES ACT, 1961, MORE PARTICULARLY, SECTION 48AA , WHICH PROVIDES THAT THE REVIEW PETIT ION CAN BE FILED WITHIN A PERIOD OF SIXTY DAYS FROM THE DATE OF THE ORDER, THE HON'BLE SUPREME COURT IN THE CASE OF D. SAIBABA ( SUPRA ) HAS HELD THAT THE WORDS 'FROM THE DATE OF THAT ORDER' MUST BE CONSTRUED AS MEANING THE DATE OF COMMUNICATION OR KNOWLEDGE OF THE ORDER TO THE REVI EW. IN PARAGRAPH 9 TO 14 THE HON'BLE SUPREME COURT HAS OBSERVED AND HE LD AS UNDER; '9. SO FAR AS THE COMMENCEMENT OF THE PERIOD OF LIM ITATION FOR FILING THE REVIEW PETITION IS CONCERNED WE ARE CLEARLY OF THE OPINION THAT THE EXPRESSION 'THE DATE OF THAT ORDER' AS OCCURRING IN SECTION 48-AA HAS TO BE CONSTRUED AS MEANING THE DATE OF COMMUNICATION O R KNOWLEDGE OF THE ORDER TO THE REVIEW PETITIONER. WHERE THE LAW P ROVIDES A REMEDY TO A MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 8 PERSON, THE PROVISION HAS TO BE SO CONSTRUED IN CAS E OF AMBIGUITY AS TO MAKE AVAILING OF THE REMEDY PRACTICAL AND THE EXERC ISE OF POWER CONFERRED ON THE AUTHORITY MEANINGFUL AND EFFECTIVE . A CONSTRUCTION WHICH WOULD RENDER THE PROVISION NUGATORY OUGHT TO BE AVOIDED. TRUE, THE PROCESS OF INTERPRETATION CANNOT BE UTILIZED FO R IMPLANTING A HEART INTO A DEAD PROVISION; HOWEVER, THE POWER TO CONSTR UE A PROVISION OF LAW CAN ALWAYS BE SO EXERCISED AS TO GIVE THROB TO A SINKING HEART. 10. AN IDENTICAL POINT CAME UP FOR THE CONSIDERATIO N OF THIS COURT IN RAJA HARISH CHANDRA RAJ SINGH V. DY. LAND ACQUISITI ON OFFICER. SECTION 18 OF THE LAND ACQUISITION ACT, 1894 CONTEM PLATES AN APPLICATION SEEKING REFERENCE TO THE COURT BEING FI LED WITHIN SIX MONTHS FROM THE DATE OF THE COLLECTOR'S AWARD. IT WAS HELD THAT 'THE DATE OF THE AWARD' CANNOT BE DETERMINED SOLELY BY REFERENCE TO THE TIME WHEN THE AWARD IS SIGNED BY THE COLLECTOR OR DELIVERED BY HI M IN HIS OFFICE. IT MUST INVOLVE THE CONSIDERATION OF THE QUESTION AS T O WHEN IT WAS KNOWN TO THE PARTY CONCERNED EITHER ACTUALLY OR CONSTRUCT IVELY. IF THAT BE THE TRUE POSITION, THEN PLACING A LITERAL AND MECHANICA L CONSTRUCTION ON THE WORDS 'THE DATE OF THE AWARD' OCCURRING IN THE RELE VANT SECTION WOULD NOT BE APPROPRIATE. IT IS FAIR AND JUST THAT A DECI SION IS COMMUNICATED TO THE PARTY WHOSE RIGHTS WILL ULTIMATELY BE AFFECTED OR WHO WILL BE AFFECTED BY THE DECISION. THE KNOWLEDGE, EITHER ACT UAL OR CONSTRUCTIVE, OF THE PARTY AFFECTED BY SUCH A DECISION, IS AN ESS ENTIAL ELEMENT WHICH MUST BE SATISFIED BEFORE THE DECISION CAN BE BROUGH T INTO FORCE. THUS CONSTRUED, THE MAKING OF THE AWARD CANNOT CONSIST M ERELY OF THE PHYSICAL ACT OF WRITING AN AWARD OR SIGNING IT OR E VEN FILING IT IN THE OFFICE OF THE COLLECTOR; IT MUST INVOLVE THE COMMUN ICATION OF THE SAID AWARD TO THE PARTY CONCERNED EITHER ACTUALLY OR CON STRUCTIVELY. A LITERAL OR MECHANICAL WAY OF CONSTRUING THE WORDS 'FROM THE DATE OF THE COLLECTOR'S AWARD' WAS HELD TO BE UNREASONABLE. THE COURT ASSIGNED A PRACTICAL MEANING TO THE EXPRESSION BY HOLDING IT A S MEANING THE DATE WHEN THE AWARD IS EITHER COMMUNICATED TO THE PARTY OR IS KNOWN BY HIM EITHER ACTUALLY OR CONSTRUCTIVELY. 11. THE VIEW TAKEN IN RAJA HARISH CHANDRA RAJ SINGH CASE BY A TWO JUDGE BENCH OF THIS COURT WAS AFFIRMED BY A THREE J UDGE BENCH OF THIS COURT IN STATE OF PUNJAB V. QAISAR JEHAN BEGUM. THI S COURT ADDED THAT THE KNOWLEDGE OF THE AWARD DOES NOT MEAN A MERE KNO WLEDGE OF THE FACT THAT AN AWARD HAS BEEN MADE; THE KNOWLEDGE MUS T RELATE TO THE ESSENTIAL CONTENTS OF THE AWARD. 12. IN ASSTT. TRANSPORT COMMISSIONER V. NAND SINGH THE QUESTION OF LIMITATION FOR FILING AN APPEAL UNDER SECTION 15 OF THE U.P. MOTOR VEHICLES TAXATION ACT, 1935 CAME UP FOR THE CONSIDE RATION OF THIS COURT. IT PROVIDES FOR AN APPEAL BEING PREFERRED 'W ITHIN THIRTY DAYS FROM THE DATE OF SUCH ORDER'. THE TAXATION OFFICER PASSE D AN ORDER ON 20/10/1964 / 24/10/1964 WHICH WAS RECEIVED BY THE P ERSON AGGRIEVED ON 29/10/1964. THE APPEAL FILED BY HIM WAS WITHIN T HIRTY DAYS - THE MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 9 PRESCRIBED PERIOD OF LIMITATION, CALCULATED FROM 29 /10/1964, BUT BEYOND THIRTY DAYS OF 24/10/1964. IT WAS HELD THAT THE EFF ECTIVE DATE FOR CALCULATING THE PERIOD OF LIMITATION WAS 29/10/1964 AND NOT 24/10/1964. 13. IN RAJ KUMAR DEY V. TARAPADA DEY THIS COURT PRESSED INTO SERVICE TWO LEGAL MAXIMS GUIDING AND ASSISTING THE COURT WH ILE RESOLVING AN ISSUE AS TO CALCULATION OF THE PERIOD OF LIMITATION PRESCRIBED, NAMELY, (I) THE LAW DOES NOT COMPEL A MAN TO DO THAT WHICH HE C OULD NOT POSSIBLY PERFORM, AND (II) AN ACT OF THE COURT SHALL PREJUDI CE NO MAN. THESE PRINCIPLES SUPPORT THE VIEW TAKEN BY US HEREINABOVE . ANY VIEW TO THE CONTRARY WOULD LEAD TO AN ABSURDITY AND ANOMALY. AN ORDER MAY BE PASSED WITHOUT THE KNOWLEDGE OF ANYONE EXCEPT ITS A UTHOR, MAYBE KEPT IN THE FILE AND CONSIGNED TO THE RECORD ROOM OR THE FILE MAY LIE UNATTENDED, UNWITTINGLY OR BY CARELESSNESS. IN EITH ER CASE, THE REMEDY AGAINST THE ORDER WOULD BE LOST BY LIMITATION THOUG H THE PERSON AGGRIEVED OR AFFECTED DOES NOT EVEN KNOW WHAT ORDER HAS BEEN PASSED. SUCH AN INTERPRETATION CANNOT BE COUNTENANCED. 14. HOW CAN A PERSON CONCERNED OR A PERSON AGGRIEVE D BE EXPECTED TO EXERCISE THE RIGHT OF REVIEW CONFERRED BY THE PROVI SION UNLESS THE ORDER IS COMMUNICATED TO OR IS KNOWN TO HIM EITHER ACTUAL LY OR CONSTRUCTIVELY? THE WORDS 'THE DATE OF THAT ORDER', THEREFORE, MEAN AND MUST BE CONSTRUED AS MEANING THE DATE OF COMMUNICAT ION OR KNOWLEDGE, ACTUAL OR CONSTRUCTIVE, OF THE ORDER SOU GHT TO BE REVIEWED.' 10.2 IDENTICAL QUESTION CAME TO BE CONSIDERED BY THE DI VISION BENCH OF THIS COURT IN THE CASE OF VADILAL INDUSTRIES LTD. ( SUPRA ), HOWEVER DEALING WITH THE SIMILAR ANALOGOUS PROVISION UNDER THE CENTRAL EXCISE ACT I.E SECTION 35C(2) OF THE CENTRAL EXCISE ACT. I N THE SAID DECISION, THE DIVISION BENCH OF THIS COURT HAS HELD THAT THE RECTIFICATION APPLICATION CAN BE MADE WITHIN A PERIOD OF SIX MONT HS FROM THE DATE OF RECEIPT OF THE ORDER, WHICH IS SOUGHT TO BE REVIEWE D. WHILE HOLDING SO IN PARAGRAPH NOS. 15 AND 16 THE DIVISION BENCH HAS OBSERVED AND HELD AS UNDER; '15. THERE IS ANOTHER ANGLE FROM WHICH THE MATTER C AN BE APPROACHED. IT IS ONLY THE PARTY TO THE APPEAL WHO FINDS THAT THE ORDER CONTAINS A MISTAKE APPARENT FROM THE RECORD AND IS AGGRIEVED B Y SUCH MISTAKE, WOULD BE IN A POSITION TO MOVE AN APPLICATION SEEKI NG RECTIFICATION OF THE ORDER. THEREFORE ALSO, UNLESS AND UNTIL A PARTY TO THE APPEAL IS IN A POSITION TO GO THROUGH AND STUDY THE ORDER IT WOULD BE POSSIBLE, NOR CAN IT BE ENVISAGED, THAT A PARTY CAN CLAIM TO BE AGGRI EVED BY THE MISTAKE APPARENT FROM THE RECORD. HENCE, EVEN ON THIS COUNT THE PERIOD OF LIMITATION HAS TO BE READ AND UNDERSTOOD SO AS TO M EAN FROM THE DATE OF THE RECEIPT OF THE ORDER. 16. THEREFORE, THE ACTION OF THE TECHNICAL OFFICER TO RETURN THE PAPERS OF ROM APPLICATION WITHOUT EVEN PLACING THE SAME BEFOR E THE BENCH MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 10 CONCERNED IS NOT ONLY BAD IN LAW, BUT IS NOT SUPPOR TED BY THE PROVISIONS OF THE ACT.' 11. IN VIEW OF THE ABOVE, THE ITAT HAS COMMITTED A GRA VE ERROR IN DISMISSING THE RECTIFICATION APPLICATION ON THE GRO UND THAT THE SAME IS BARRED BY LIMITATION. FROM THE DATE OF RECEIPT OF T HE IMPUGNED JUDGMENT AND ORDER PASSED BY THE TRIBUNAL, WHICH IS SOUGHT T O BE REVIEWED, IT CAN BE SEEN THAT THE RECTIFICATION APPLICATION HAS BEEN SUBMITTED WITHIN THE PERIOD OF FOUR YEARS FROM THE DATE OF ACTUAL RECEIP T OF THE JUDGMENT AND ORDER AND, THEREFORE, IT IS TO BE HELD THAT THE SAM E IS WITHIN THE PERIOD OF LIMITATION AS PER SECTION 254(2) OF THE INCOME TAX ACT. UNDER THE CIRCUMSTANCES, THE IMPUGNED ORDER PASSED BY THE ITA T CANNOT BE SUSTAINED. 12. NOW SO FAR AS THE SUBMISSION MADE BY SHRI MANISH B HATT, LEARNED COUNSEL APPEARING ON BEHALF OF THE REVENUE NOT TO E XERCISE THE DISCRETIONARY POWER UNDER ARTICLE 226 OF THE CONSTI TUTION OF INDIA SUBMITTING THAT LOOKING TO THE CONDUCT ON THE PART OF THE PETITIONER- ASSESSEE, MORE PARTICULARLY, WHEN ADMITTEDLY THE PE TITIONER-ASSESSEE RECEIVED THE ORDER PASSED BY THE TRIBUNAL, WHICH WA S SOUGHT TO BE REVIEWED ON 19/11/2008 AND THE PETITIONER-ASSESSEE SUBMITTED THE MA ON 09/05/2012 AFTER A PERIOD OF THREE YEARS AND SIX MONTHS AND THERE IS NO EXPLANATION WHATSOEVER WITH RESPECT TO THE PERIO D BETWEEN 19/11/2008 AND 09/05/2012 IS CONCERNED AND TO DISMI SS THE PRESENT SPECIAL CIVIL APPLICATION ON THE AFORESAID GROUND I S CONCERNED, THE AFORESAID CANNOT BE ACCEPTED. AT THE OUTSET, IT IS REQUIRED TO BE NOTED THAT THE STATUTE HAS CONFERRED THE RIGHT IN FAVOUR OF THE PETITIONER- ASSESSEE OR EVEN THE REVENUE TO PREFER THE RECTIFIC ATION APPLICATION WITHIN A PERIOD OF FOUR YEARS AND, THEREFORE, EVEN IF THE RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION IS SUBMITTED ON THE LAST DAY OF COMPLETION OF FOUR YEARS FROM THE DATE OF RECEIPT O F THE ORDER, WHICH IS SOUGHT TO BE REVIEWED, THE SAME IS REQUIRED TO BE D ECIDED ON MERITS AND IN SUCH A SITUATION THE PETITIONER-ASSESSEE IS NOT REQUIRED TO GIVE ANY EXPLANATION FOR THE PERIOD BETWEEN ACTUAL DATE OF R ECEIPT OF THE JUDGMENT AND ORDER, WHICH IS SOUGHT TO BE REVIEWED AND THE DATE ON WHICH THE MISCELLANEOUS APPLICATION IS SUBMITTED PR OVIDED SUCH A RECTIFICATION APPLICATION IS SUBMITTED WITHIN A PER IOD OF FOUR YEARS FROM THE DATE OF ACTUAL RECEIPT OF THE ORDER OF THE TRIB UNAL, WHICH IS SOUGHT TO BE REVIEWED. 13. UNDER THE CIRCUMSTANCES ON THE AFORESAID GROUND TH E RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION CANNOT BE REJ ECTED AND/OR THE PETITION IS NOT REQUIRED TO BE DISMISSED. ONCE IT I S FOUND THAT THE RECTIFICATION APPLICATION UNDER SECTION 254(2) OF T HE INCOME TAX ACT HAS BEEN SUBMITTED WITHIN A PERIOD OF FOUR YEARS FR OM THE DATE OF ACTUAL RECEIPT OF THE JUDGMENT AND ORDER PASSED BY THE TRI BUNAL, WHICH IS SOUGHT TO BE REVIEWED, THE PETITIONER IS ENTITLED T O THE RELIEF AS PRAYED FOR. MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 11 14. IN VIEW OF THE ABOVE AND FOR THE REASONS STATED HE REINABOVE, THE PETITION SUCCEEDS. THE IMPUGNED ORDER PASSED BY THE ITAT DATED 03/05/2013 IN M.A. NO. 104/AHD/2012 IS HEREBY QUASH ED AND SET ASIDE AND IT IS HELD THAT THE RECTIFICATION APPLICATION/M ISCELLANEOUS APPLICATION SUBMITTED BY THE PETITIONER-ASSESSEE BEFORE THE ITA T WAS WITHIN THE PERIOD OF LIMITATION AS PROVIDED UNDER SECTION 254( 2) OF THE INCOME TAX ACT AND THE MATTER IS NOW REMANDED TO THE ITAT TO DECIDE THE RECTIFICATION APPLICATION/MISCELLANEOUS APPLICATION SUBMITTED BY THE PETITIONER-ASSESSEE IN ACCORDANCE WITH LAW AND ON I TS OWN MERITS. RULE IS MADE ABSOLUTE TO THE AFORESAID EXTENT. NO ORDER AS TO COSTS. WE FIND THAT IN THE AFORESAID ORDER, THE HON'BLE CO URT HAS CLEARLY HELD THAT THE PERIOD OF FOUR YEAR OR TH E SIX MONTH (AS THE CASE MAY BE) HAS TO BE COUNTED FROM T HE DATE OF ACTUAL RECEIPT OF ORDER PASSED BY THE TRIBU NAL, WHICH IS SOUGHT TO BE REVIEWED. THE ASSESSEE HAS PRODUCED THE RECORD OF THE DISPATCH SECTION OF THE REGISTRY OF THE TRIBUNAL, AS PER WHICH THE ORDER WAS DISPATC HED ON 07/11/2017 AND SINCE THE IMPUGNED ORDER IS AN EX-PA RTE ORDER, CONSEQUENTLY, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE, WE DEEM IT APPROPRIATE TO RECALL T HE AFORESAID EX-PARTE ORDER DATED 31/08/2017. THE REGI STRY OF THIS TRIBUNAL IS DIRECTED TO FIX THE APPEAL OF T HE ASSESSEE FOR FRESH HEARING BEFORE THE REGULAR BENCH IN DUE C OURSE. THE PARTIES MAY BE INFORMED ABOUT THE NEXT DATE OF MA NO.287/ MUM/2018 M/S KABIR INFOSOLUTION INDIA PVT. LTD. 12 HEARING. THUS, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. FINALLY, THE MISCELLANEOUS APPLICATION OF THE ASSES SEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 28/12/2018. SD/- (JOGINDER SINGH) '() / VICE PRESIDENT MUMBAI; ' DATED : 28/12/2018 F{X~{T? P.S / #$ $ ' *+,- .$-/, / COPY OF THE ORDER FORWARDED TO : 1. %&'( / THE APPELLANT 2. )*'( / THE RESPONDENT. 3. + + , ( %& ) / THE CIT, MUMBAI. 4. + + , / CIT(A)- , MUMBAI 5. /01 )# , + %& %#3 , / DR, ITAT, MUMBAI 6. 14 5& / GUARD FILE. $ / BY ORDER, '/ (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI,