Shri Kasturilal Sardarilal luthra, Nashik V. Deputy Commissioner of Income-tax, Central Circle - 1, Nashik

MA 38/PUN/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6488 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 08-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR VIVEK AGGARWAL
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM . / MA NO. 38 /PUN/201 7 (ARISING OUT OF ITA NO .9 23 /PUN/201 1 ) / ASSESSMENT YEAR : 200 3 - 04 SHRI KASTURILAL SARDARILAL LUTHRA, URMIL, SHRIN MEADOWS, GANGAPUR ROAD, NASHIK PAN : AAFPK4629P ....... / APP LICANT / V/S. THE DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK / RESPONDENT ASSESSEE BY : S HRI M.K. KULKARNI REVENUE BY : DR. VIVEK AGGARWAL / DATE OF HEARING : 05 - 01 - 2018 / DATE OF PRONOUNCEMENT : 04 - 0 4 - 201 8 / ORDER PER VIKAS AWASTHY, JM : TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE U/S. 254(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO . 923/PUN/2011 DATED 29 - 07 - 2016 FOR THE ASSESSMENT YEAR 200 3 - 04. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED WITH THE DELAY OF 97 DAYS. 2 MA NO. 38/PUN/2017, A.Y. 2003 - 04 2. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE/APPLICANT SUBMITTED THAT THE TRIBUNAL HAS ERRED IN CONFIRMING THE ADDITION OF RS. 61.65 LAKHS IN THE ASSESSMENT YEAR 2003 - 04 , WHEREAS THE SAID INCOME HAS ALREADY BEEN TAXED IN THE ASSESSMENT YEAR 2002 - 03. RESULTANTLY, THE SAME INCOME HAS BEEN TAXED TWICE IN TWO DIFFERENT ASSESSMENT YEARS. AS REGARDS THE DELAY IN FILING OF MISCELLANEOUS APPLICATION THE LD. COUNSEL FOR T HE ASSESSEE SUBMITTED THAT THE ORDER WAS RECEIVED ON 07 - 11 - 2016. THE LIMITATION OF SIX MONTHS FOR FILING MISCELLANEOUS APPLICATION U/S. 254(2) STARTS FROM THE DATE OF RECEIPT OF ORDER . THE SIX MONTHS PERIOD ENDED ON 06 - 05 - 201 7 . 6 TH AND 7 TH MAY, BEING CL OSED HOLIDAYS, THE APPLICATION WAS THUS FILED ON 8 TH MAY, 2017. THEREFORE, THE MISCELLANEOUS APPLICATION IS WELL WITHIN LIMITATION PERIOD. THE LD. COUNSEL TO SUBSTANTIATE HIS SUBMISSIONS PLACED RELIANCE ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COUR T IN THE CASE OF DISTRICT CENTRAL CO - OP. BANK LTD. VS. UNION OF INDIA REPORTED AS 398 ITR 161. 3. ON THE OTHER HAND DR. VIVEK AGGARWAL REPRESENTING THE DEPARTMENT VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. THE LD. DR SUBMITTE D THAT THE MISCELLANEOUS APPLICATION IS LIABLE TO BE DISMISSED AS IT IS FILED BEYOND THE PERIOD OF LIMITATION OF SIX MONTHS AS MANDATED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. 4. W E HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVA L SIDES . THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE U/S. 254(2) OF THE ACT SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 29 - 07 - 2016 . THE PROVISIONS OF SECTION 254(2) HAVE BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01 - 06 - 2016. THE AMENDED PROVISIONS OF SUB - SECTION (2) OF SECTION 254 READS AS UNDER : THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN [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 , AMEND ANY ORDER PASSED BY IT UNDER SUB - 3 MA NO. 38/PUN/2017, A.Y. 2003 - 04 SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER. A BARE PERUSAL OF AMENDED PROVISIONS SHOW THAT THE MISCELLANEOUS APPLICATION SEEKING R ECTIFICATION OF ANY MISTAKE APPARENT FROM RECORD CAN BE FILED BY EITHER SIDE WITHIN A PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH THE ORDER WAS PASSED. IN THE PRESENT CASE, THE ORDER WAS PASSED ON 29 - 07 - 2016, THEREFORE, THE LIMITATION FOR FILING O F MISCELLANEOUS APPLICATION U/S. 254(2) STARTS FROM 1 ST AUGUST, 2016 AND THE LIMITATION ENDS ON 31 ST JANUARY, 2017. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE/APPLICANT ON 08 - 05 - 2017. THEREFORE, THIS MISCELLANEOUS APPLICATION HAS BEEN FILED WITH THE DELAY OF 97 DAYS AND HENCE, IS BARRED BY LIMITATION. THE TRIBUNAL HAS NO POWER TO CONDONE THE DELAY IN FILING OF MISCELLANEOUS APPLICATION UNDER PROVISIONS OF SECTION 254(2) OF THE ACT. 5. THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF RAJA MALWINDER SINGH VS. UNION OF INDIA & ANR. REPORTED AS 278 ITR 568 HAS HELD THAT THE TRIBUNAL HAS NO JURISDICTION TO AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) OF SECTION 254 AFTER THE EXPIRY OF PRESCRIBED TIME LIMIT, WHETHER IT IS ON ITS OWN VOLITION OR ON AN APPLICATION BEING MADE BY THE ASSESSEE OR THE ASSESSING OFFICER. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF TRIBUNAL IN THE CASE OF RAHUL JEE & CO. (P) LTD. VS. A SSISTANT COMMISSIONER OF INCOME TAX REPORTED AS 120 ITD 481 AND SEVERAL OTHER DECISIONS BY VARIOUS BENCHES OF THE TRIBUNAL. 6. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF DISTR ICT CENTRAL CO - OP. BANK LTD. VS. UNION OF INDIA (SUPRA) . WE FIND THAT THE FACTS IN THE SAID CASE ARE DISTINGUISHABLE. IN THE SAID CASE THE ORDER OF TRIBUNAL WAS PASSED 4 MA NO. 38/PUN/2017, A.Y. 2003 - 04 BEFORE AMENDMENT OF SECTION 254(2) BY THE FINANCE ACT 2016. THE TRIBUNAL REJECTED APP LICATION OF THE ASSESSEE U/S. 254(2) BY APPLYING AMENDED PROVISIONS. THE HONBLE HIGH COURT ALLOWING THE PETITION OF ASSESSEE HELD THAT THE NEW LAW OF LIMITATION PROVIDING A SHORTER PERIOD CANNOT BE APPLIED RETROSPECTIVELY. IT IS NOT THE CASE OF ASSESSEE THAT THE TRIBUNAL ORDER SOUGHT TO BE RECTIFIED IS PASSED PRIOR TO AMENDMENT. THUS, THE CASE LAW ON WHICH THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE DOES NOT SUPPORT THE CAUSE OF ASSESSEE. 7. THE TRIBUNAL CANNOT GO INTO THE REASONS /MERITS FOR F ILING OF MISCELLANEOUS APPLICATION , AS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE SUFFERS FROM LIMITATION , HENCE, THE SAME IS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON WEDNES DAY, T HE 04 TH DAY OF APRIL, 201 8 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 04 TH APRIL, 2018 RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - I I , NASHIK 4. THE ADDL. COMMISSIONER OF INCOME TAX, CENTRAL RANGE, NASHIK 5. , , , / DR, ITAT, B BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE