Deputy Commissioner of Income-tax, V. M/s. Praj Industries Ltd., Pune

MA 40/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5147 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 22-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L KUREEL
• Keywords: Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . /MA NO. 40 /PN/ 20 1 6 ARISING OUT OF ITA NO. 1 027 /PN/20 1 4 ASSESSMENT YEAR : 200 7 - 0 8 THE DY. COMMISSIONER OF INCOME TAX (TDS) - 2, PUNE ... APPLICANT VS. M/S. PRAJ INDUSTRIES LTD., PRAJ HOUSE, BAVDHAN, PUNE 411021 ... RESPONDENT PAN : AA ACP6090Q APPLICANT BY : SHRI P.L. KUREEL RESPONDENT BY : SHRI C.H. NANIWADEKAR / / / DATE OF HEARING : 21 . 1 0 .201 6 / DATE OF PRONOUNCEMENT: 21 . 12 .201 6 / ORDER PER SUSHMA CHOWLA , JM : THE PRESENT MIS CELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE APPLICANT AGAINST THE ORDER OF TRIBUNAL IN ITA NO. 1 027 /PN/20 1 4 RELATING TO ASSESSMENT YEAR 200 7 - 0 8 , ORDER DATED 17 . 12 .201 5 . 2. THE GRIEVANCE OF THE REVENUE IS THAT THE TRIBUNAL HAD ERRED IN HOLDING THA T THE PERIOD OF FINANCIAL YEAR 2006 - 07 WAS UP TO 31.03.2006 INSTEAD OF 31.03.2007 AND CONSEQUENTLY, THE AMENDED PROVISIONS OF SECTION 194I OF THE INCOME TAX ACT, 2 M A NO. 40 /PN/20 1 6 ARISING O UT OF ITA NO. 1 027 /PN/ 20 1 4 1961 (IN SHORT THE ACT) WHICH INCLUDED THE RENT ON PLANT AS DEFINED IN SECTION 43(3) OF THE ACT , WOULD APPLY. 3. THE FIRST POINT TO BE NOTED IN THE MISCELLANEOUS APPLICATION IS THAT THE REGISTRY HAS PUT UP A NOTE THAT THE PRESENT MISCELLANEOUS APPLICATION IS TIME BARRED BY 52 DAYS. IN THIS REGARD, THE AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT NEED TO BE LOOKED INTO. PRIOR TO THE AMENDMENT, UNDER SUB - SECTION (2) TO SECTION 254 OF THE ACT, IT WAS PROVIDED THAT THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF ORDER PASSED WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT F ROM RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) TO SECTION 254 OF THE ACT . T HE SAID SUB - SECTION HAS BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01.06.2016, WHEREIN TIME LIMIT TO PASS THE ORDER HAS BEEN CURTAILED TO SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. THE PRESENT APPEAL AGAINST WHICH THE MISCELLANEOUS APPLICATION HAS BEEN FILED WAS DECIDED BY THE TRIBUNAL VIDE ORDER DATED 17.12.2015, HENCE THE FIRST ASPECT OF THE ISSUE IS THAT THE SAME WAS DECIDED BEFORE SUBS TITUTION MADE BY THE FINANCE ACT, 2016 W.E.F. 01.06.2016. IN SUCH CASES WHERE THE TRIBUNAL HAS DECIDED THE APPEALS PRIOR TO SUBSTITUTION MADE IN SUB - SECTION (2) TO SECTION 254 OF THE ACT I.E. BY 31.05.2016, THEN PRE - AMENDED PROVISIONS OF THE ACT, UNDER WH ICH MISCELLANEOUS APPLICATION FOR RECTIFYING ANY MISTAKE APPARENT FROM RECORD, COULD BE MADE WITHIN PERIOD OF FOUR YEARS FROM THE DATE OF ORDER, STILL STANDS. HOWEVER, WHERE THE APPELLATE TRIBUNAL HAS DECIDED THE APPEALS AND PASSED THE ORDERS FROM 01.06.2 016 AND THEREAFTER, THEN THE POWER TO AMEND THE ORDER PASSED BY IT IS TO BE EXERCISED WITHIN PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH THE ORDER WAS PASSED. IN OTHER WORDS, THE MISCELLANEOUS APPLICATION SHOULD BE FILED WITHIN THE SAID TIME FRAME AS AGAINST EARLIER PERIOD ALLOWED UNDER THE STATUTE OF FOUR YEARS FROM THE DATE OF ORDER. IT MAY BE CLARIFIED HEREUNDER THAT PROVISIONS OF 3 M A NO. 40 /PN/20 1 6 ARISING O UT OF ITA NO. 1 027 /PN/ 20 1 4 SECTION 254(2) OF THE ACT AS IN SECTION 154 OF THE ACT, THE APPLICATION HAS TO BE FILED WITHIN TIME FRAME. ACCORDI NGLY, THE PRESENT MISCELLANEOUS APPLICATION WHICH HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF TRIBUNAL DATED 17.12.2015 WHICH IS BEFORE THE AMENDMENT BROUGHT TO SECTION 254(2) OF THE ACT , COULD BE FILED WITHIN PERIOD OF FOUR YEARS FROM THE DATE OF O RDER. SINCE THE SAME HAS BEEN FILED WITHIN THE SAID PERIOD, THE MISCELLANEOUS APPLICATION IS WITHIN TIME AND THE SAME IS TAKEN UP FOR ADJUDICATION. 4. THE SECOND ASPECT OF THE ISSUE IS CONDONATION APPLICATION FILED IN THIS REGARD FOR CONDONING THE DELAY IN FILING MISCELLANEOUS APPLICATION LATE I.E. NOT WITHIN PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH THE TRIBUNAL PASSED THE ORDER. FIRST OF ALL, WE HAVE HELD THAT THE PRESENT ORDER OF TRIBUNAL WAS DATED 17.12.2015 I.E. BEFORE THE DATE OF AMENDMEN T OF SECTION 254(2) OF THE ACT AND THE SAME HAD TO BE FILED WITHIN FOUR YEARS AND SINCE IT HAS BEEN SO FILED, THERE IS NO NEED OF ANY CONDONATION IN THIS REGARD. FURTHER, THE TRIBUNAL UNDER SECTION 253(5) NEED OF ANY CONDONATION IN THIS REGARD. FURTHER, THE TRIBUNAL UNDER SECTION 253(5) OF THE ACT HAS THE POWER TO ADMIT AN APPEAL OR PER MIT FILING OF MEMORANDUM OF CROSS OBJECTIONS AFTER THE EXPIRY OF RELEVANT PERIOD REFERRED TO SUB - SECTION (3) OR SUB - SECTION (4) TO SECTION 253 OF THE ACT, WHERE IT IS SATISFIED THAT THERE IS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD. SUCH POWER OF CONDONATION OF DELAY WITH THE TRIBUNAL IS VIS - A - VIS LATE FILING OF AN APPEAL OR MEMORANDUM OF CROSS OBJECTIONS. NO SUCH POWER HAS BEEN ACCORDED ON THE TRIBUNAL FOR CONDONING THE DELAY IN FILING THE MISCELLANEOUS APPLICATION LATE. ACCORDINGLY, WE HOLD SO. 5. NOW, COMING TO THE MERITS OF ISSUE RAISED BY WAY OF THIS MISCELLANEOUS APPLICATION. THE REVENUE HAS POINTED OUT THAT AN ERROR HAS CREPT IN THE ORDER OF TRIBUNAL IN DECIDING THE ISSUE. THE YEAR UNDER APPEAL IS ASSESSMENT YEAR 2007 - 08 I.E. FINANCIAL YEAR 2006 - 07. THE TRIBUNAL VIDE PARA 7 REFERS TO THE AMENDMENT WHICH CAME INTO EFFECT ON 13.07.2006, UNDER WHICH THE PROVISIONS OF SECTION 194I 4 M A NO. 40 /PN/20 1 6 ARISING O UT OF ITA NO. 1 027 /PN/ 20 1 4 OF THE ACT ENLARGE THE DEFINITION OF RENT TO INCLUDE THE RENT ON PLANT AS DEFINED IN SECTION 43(3) OF THE ACT. THE TRIBUNAL WHILE DECIDING THE ISSUE HAD MENTIONED THAT THE YEAR UNDER APPEAL WAS FINANCIAL YEAR 2006 - 07 I.E. UP TO 31.03.2006 AND HELD THAT THE AMENDED PROVISIONS OF SECTION 194I OF THE ACT WERE NOT ATTRACTED. WE FIND THAT AN ERROR HAS CREPT IN THE ORDER OF TRIBUNAL, UNDER WHICH IT HAS BEEN HELD THAT YEAR UNDER APPEAL IS FINANCIAL YEAR 2006 - 07 I.E. UP TO 31.03.2006, WHICH IN FACT IS UP TO 31.03.2007. IN VIEW THEREOF, WE RECALL THE ORDER OF TRIBUNAL AND FIX THE SAME FOR HEARING BEFORE REGULAR BENCH ON 19.01.2017. THE REGISTRY IS DIRECTED TO INFORM THE PARTIES. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS THUS, ALLOWED. 6 . IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE APPLICANT IS ALLOWED. ORDER P RONOUNCED ON THIS 21 ST DA Y OF DECEM BER , 201 6 . SD/ - SD/ - SD/ - SD/ - ( ANIL CHATURVEDI ) ( SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 21 ST DECEM BER , 201 6 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APP LICANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT(A) - V , PUNE ; 4. / THE CIT (TDS) , P U NE ; 5. , , / DR B, ITAT, PUNE; 6. / GUARD FILE . / BY ORDER, // TRUE COPY // // TRUE COPY / / / SR. PRIVATE SECRETARY , / ITAT, PUNE