ITO, WARD 4(2), Jalandhar V. Sh. Gurnam Singh S/O Sh. Pargat Singh, Jalandhar

MA 43/ASR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5820 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-10-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: Y K SUD; S S KALRA
• Keywords: Rectification of order; Opportunity of being heard; Bonafide belief; Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY, JUDICIAL MEMBER M. A. NO. 39/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 16/(ASR)/2015) ASSESSMENT YEAR: 2009-10 PAN: DBJPS-1071J INCOME TAX OFFICER, WARD- 4 (2), JALANDHAR. VS. SH. BACHAN SINGH URF SH. GURBACHAN SINGH S/O SH. BISHAN SINGH, VILL.- SARMASTPUR, TEHSIL & DISTT. JALANDHAR. (APPELLANT) (RESPONDENT) M. A. NO. 40/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 87/(ASR)/2015) ASSESSMENT YEAR: 2009-10 PAN: INCOME TAX OFFICER, WARD- 4 (2), JALANDHAR. VS. SH. PALWINDER SINGH S/O SH. PARGAT SINGH VILL.- SARMASTPUR, TEHSIL & DISTT. JALANDHAR. (APPELLANT) (RESPONDENT) M. A. NO. 43/(ASR)/2017 (ARISING OUT OF I.T.A. NO. 15/(ASR)/2015) ASSESSMENT YEAR: 2009-10 PAN: EOQPS8693R INCOME TAX OFFICER, WARD- 4 (2), JALANDHAR. VS. SH. GURNAM SINGH S/O SH. PARGAT SINGH, VILL.- SARMASTPUR, TEHSIL & DISTT. JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. S. S. KANWAL (D.R. ) RESPONDENT BY: SH. Y. K. SUD & S. S. KAL RA (C.A.) DATE OF HEARING: 27.10.2017 DATE OF PRONOU NCEMENT: 22.11.2017 MA NOS. 39,40&43 (ASR)/2017 ARISING OUT OF ITA. NOS.16,87 ,15 /(ASR)/2015 ASST. YEAR:2009-10 2 ORDER PER T. S. KAPOOR (AM): THESE THREE MISCELLANEOUS APPLICATIONS HAS BEEN FIL ED BY REVENUE AGAINST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATE D 23.06.2016 IN THE CASE OF BACHAN SINGH, PALWINDER SINGH AND GURNAM SI NGH. 2. THE REVENUE HAD FILED ADJOURNMENT APPLICATIONS IN THESE MISCELLANEOUS APPLICATIONS, HOWEVER THE LD. AR OBJE CTED TO THE ADJOURNMENT APPLICATIONS AND SUBMITTED THAT HE HAS A PRELIMINARY OBJECTION TO THE MISCELLANEOUS APPLICATIONS FILED B Y REVENUE AND WHICH NEEDS TO BE DISMISSED AS THE MISCELLANEOUS APPLICAT ION HAS BEEN FILED BEYOND A PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH THE ORDER OF HON'BLE TRIBUNAL OF ITAT WAS PASSED. THE LD. AR IN THIS RESPECT INVITED OUR ATTENTION TO THE MISCELLANEOUS APPLICAT IONS ITSELF WHEREIN THE ASSESSING OFFICER HIMSELF HAS ADMITTED THAT DUE TO BONAFIDE BELIEF THAT THE TIME PERIOD FOR FILING MISCELLANEOUS APPLICATIO N STILL PREVAILED AT FOUR YEARS FROM THE DATE OF ORDER OF HON'BLE TRIBUNAL, T HE REVENUE FAILED TO FILE MISCELLANEOUS APPLICATIONS WITHIN THE AMENDED PERIO D OF SIX MONTHS FROM THE DATE OF ORDER OF THE HON'BLE TRIBUNAL. 3. THE LD. AR IN THIS RESPECT RELIED ON THE DECISIO N OF BANGLORE BENCH OF ITAT IN THE CASE OF MS. SHAMSUNISSA BEGUM VS. DC IT, CIRCLE11(1), BANGLORE WHEREIN THE HON'BLE TRIBUNAL HAD HELD THAT IN THE ABSENCE OF ANY PROVISION TO CONDONE DELAY UNDER ACT THE MISCEL LANEOUS APPLICATION WOULD BE TIME BARRED BY LIMITATION. THE LD. AR ALSO INVITED OUR ATTENTION TO A FURTHER ORDER OF ITAT BANGLORE BENCH WHEREIN A GAIN THE HON'BLE MA NOS. 39,40&43 (ASR)/2017 ARISING OUT OF ITA. NOS.16,87 ,15 /(ASR)/2015 ASST. YEAR:2009-10 3 BENCH HAD HELD THAT THE RECTIFICATION PETITION FILE D BY ASSESSEE AFTER A PERIOD OF SIX MONTHS WAS BEYOND PERIOD OF LIMITATIO N AS PROVIDED U/S 254(2) 4. THE LD. DR ON THE OTHER HAND ARGUED THAT KEEPING IN VIEW THE SUBSTANTIAL JUSTICE, THE DELAY IN FILING THE MISCEL LANEOUS APPLICATIONS BE CONDONED AND MISCELLANEOUS APPLICATIONS BE HEARD ON MERITS. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE PRELIMI NARY OBJECTION TAKEN BY LD. AR IS JUSTIFIED AND THEREFORE ADJOURNMENT AP PLICATIONS WERE REJECTED. WE FIND THAT HON'BLE TRIBUNAL VIDE CONSOL IDATED ORDER DATED 23.06.2016 HAD DISPOSED OFF THE APPEALS IN ITA NO. 16, 15 & 87. THE REVENUE HAS FILED THE MISCELLANEOUS APPLICATIONS ON 03.02.2017. THE AMENDED PERIOD PROVIDED UNDER THE ACT FOR FILING RE CTIFICATION APPLICATIONS IS SIX MONTHS FROM THE DATE OF MONTH I N WHICH THE ORDER OF THE TRIBUNAL HAS BEEN PASSED. IN THE PRESENT CASE, THE HON'BLE TRIBUNAL HAS PASSED ORDERS ON 26.06.2016 AND THEREFORE THE L IMITATION FOR FILING THE MISCELLANEOUS APPLICATIONS EXPIRES ON 31 ST DECEMBER, 2016 AND THE MISCELLANEOUS APPLICATIONS HAS BEEN FILED IN THE MO NTH OF FEBRUARY, 2017 AND THEREFORE ADMITTEDLY THESE ARE TIME BARRED AND CANNOT BE MAINTAINED, IN VIEW OF THE DECISION OF BANGLORE BEN CH OF THE TRIBUNAL IN THE CASE OF MS. SHAMSUNISSA BEGUM VS. DCIT. THE FIN DINGS OF THE HON'BLE TRIBUNAL AS CONTAINED IN PARA 4 AT WHICH FO R THE SAKE OF COMPLETENESS IS REPRODUCED BELOW: MA NOS. 39,40&43 (ASR)/2017 ARISING OUT OF ITA. NOS.16,87 ,15 /(ASR)/2015 ASST. YEAR:2009-10 4 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CA REFULLY PERUSED THE RELEVANT RECORD. THE ASSESSEE HAS FILED THESE MISCE LLANEOUS PETITIONS ON 13.01.2017 FOR RECALLING OF ORDER OF THE TRIBUNAL D ATED 07.04.2016. 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 ORD ERS THEREON AS IT THINKS FIT. (1A)** (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 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. 4.1. THE TIME PERIOD WITHIN WHICH THE MISTAKE APPAR ENT 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 AFTE R THE SUBSTITUTION OF THIS PROVISION W.E.F. 01.06.2016, THE LIMITATION PE RIOD 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 07.04. 2016 AND AFTER THE AMENDMENT IN SECTION 254(4) W.E.F. 01.06.2016, THES E MISCELLANEOUS PETITIONS WERE REQUIRED TO BE FILED BEFORE 31.12.20 16. PRIOR TO THE AMENDMENT, THE LIMITATION WAS PROVIDED AS 4 YEARS F OR RECTIFICATION OF MISTAKE APPARENT FROM RECORD AND THEREFORE THERE WA S 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 WAS MORE THAN THE LIMITATION FOR FILING OF THE SUITE AND AS PER THE GENERAL STATUTE I.E.,, THE LIMITATION AC T WHERE THE LIMITATION FOR INSTITUTION OF SUIT IS PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION ARISED AND THEREFORE THERE WAS NO PROVISION EVEN IN THE LIMITATION ACT FOR CONDONATION OF DELAY IN RESPECT OF DELAY IN FILING THE SUIT. SINCE THE LIMITATION FOR RECTIFICATION OF MISTAKE IS PROVIDED IN THE INCOME-TAX ACT ITSELF, THEREFORE THE PROVISIONS OF LIMITATION ACT ARE NOT APPLICABLE SO FAR AS THE LIMITATION PROVIDED IN THE INCOME- TAX ACT. THIS PR INCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPECIAL STATUTE, THEN THE GENERAL STATUTE IS NOT APPLICABLE TO THE EXTENT OF THE PROVISION PROVIDED IN THE SPECIAL STATUTE. WE FIND THAT, PRIOR TO THE AMENDMENT THE LIMITATION FO R RECTIFICATION OF MISTAKE WAS 4 YEARS AS PROVIDED UNDER SECTION 254(2) AND TH EREFORE THERE WAS NO QUESTION OF PROVIDING ANY PROVISION OR POWER TO THE INCOME TAX APPELLATE TRIBUNAL TO CONDONE THE DELAY AFTER THE EXPIRY OF S UCH 4 YEARS OF LIMITATION. HOWEVER, IN THE AMENDED PROVISIONS OF THE ACT UNDER SECTION 254(2), THE LIMITATION FOR RECTIFICATION OF MISTAKE APPARENT FR OM THE RECORD HAS BEEN MA NOS. 39,40&43 (ASR)/2017 ARISING OUT OF ITA. NOS.16,87 ,15 /(ASR)/2015 ASST. YEAR:2009-10 5 DRASTICALLY REDUCED FROM 4 YEARS TO 6 MONTHS AND 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 FOR RECTIFICATION OF THE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCEED STRICTLY AS P ER THE PROVISIONS AS PROVIDED IN THE STATUTE. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES AND J UDICIAL PRECEDENTS, WE DISMISS THE MISCELLANEOUS APPLICATIO NS FILED BY REVENUE. 6. IN NUTSHELL, THE MISCELLANEOUS APPLICATIONS FILE D BY REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 22/11/2017 GP/SR./PS COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER