SHRI LALA RAM SHARMA, Jaipur V. ITO, WARD-7-4, Jaipur

MA 43/JPR/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5303 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-07-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 17-06-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEENA JEPH CIT 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: 254(2); 73; 72; 13; 12; 144; 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. 43/JP/2019 ( ARISING OUT OF VK;DJ VIHY LA-@ ITA NO. 822/JP/2012) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08. SHRI LALA RAM SHARMA, VILLAGE : SANJHARIA, POST: THIKARIA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD-7(4), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. CMGPS 5226 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SAURABH HARSH (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEPH (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19.07.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 19/07/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER DATED 27.10.2017 OF THIS TRIBUNAL WHEREBY THE APPEA L OF THE ASSESSEE WAS DISMISSED FOR NON PROSECUTION. SINCE THERE IS A DELAY OF 412 DAYS IN FILING THE PRESENT MISCELLANEOUS APPLICATION, THEREFORE, THE QUESTION OF MAINTAINABILITY OF THE MISCELLANEOUS APPLICATION ARISES. 2. THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT T HE ASSESSEE HAS NOT RECEIVED ANY NOTICE OF HEARING ISSUED BY THIS TRIBUNAL, THER EFORE, THERE WAS NO APPEARANCE ON THE DATE OF HEARING. HE HAS FURTHER SUBMITTED THAT THE APPEAL WAS NOT DECIDED ON MERITS, THEREFORE, THERE IS A MISTAKE IN THE IMPUGN ED ORDER OF THE TRIBUNAL WHICH IS REQUIRED TO BE RECTIFIED BY RECALLING THE SAME AND DECIDED THE APPEAL OF THE ASSESSEE ON MERITS. THE LD. A/R HAS FURTHER CONTENDED THAT S INCE THE ASSESSEE WAS NOT AWARE 2 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 2 OF THE DATE OF HEARING AS WELL AS THE ORDER PASSED BY THE TRIBUNAL, THEREFORE, THE PRESENT MISCELLANEOUS APPLICATION COULD NOT BE FILE D WITHIN THE PERIOD AS PRESCRIBED UNDER SECTION 254(2) OF THE IT ACT. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE DECISION OF THIS TRIBUNAL DATED 20 TH MARCH, 2019 IN CASE OF SHRI NARENDRA KUMAR CHATURVEDI VS. ITO IN M.A. NO. 97/JP/2018. THUS TH E LD. A/R HAS PLEADED THAT THE IMPUGNED ORDER DATED 27.10.2017 BE RECALLED FOR DEC IDING THE APPEAL OF THE ASSESSEE ON MERIT. 3. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE APPEAL OF THE ASSESSEE WAS PENDING SINCE THE YEAR 2012 AND THAT TOO IS TIM E BARRED BY 501 DAYS. THE APPEAL WAS EARLIER ALSO DISMISSED VIDE ORDER DATED 15.06.2015 FOR NON PROSECUTION AND THE SAID ORDER WAS RECALLED BY THE TRIBUNAL VID E ORDER DATED 23 RD MARCH, 2016 ON THE M.A. NO. 16/JP/2016 FILED BY THE ASSESSEE. THE LD. D/R HAS FURTHER POINTED OUT THAT THE ASSESSEE DID NOT APPEAR EITHER BEFORE THE AO OR BEFORE THE LD. CIT (A), THEREFORE, THE ASSESSMENT ORDER WAS PASSED EX PARTE UNDER SECTION 144 AND DESPITE THE APPEAL FILED BEFORE THE LD. CIT (A) THE ASSESSE E DID NOT EVEN FILE ANY WRITTEN SUBMISSIONS, DETAILS, DOCUMENTS OR EVIDENCE IN SUPP ORT OF THE GROUNDS RAISED BEFORE THE LD. CIT (A). THEREFORE, IN THE ABSENCE OF ANY S UPPORTING DETAILS/EVIDENCES, THE LD. CIT (A) REJECTED THE GROUNDS RAISED BY THE ASSE SSEE. THE ASSESSEE IS A HABITUAL DEFAULTER AND NEVER TAKEN THE MATTER SERIOUSLY EITH ER BEFORE THE AO OR BEFORE THE LD. CIT (A) AND EVEN BEFORE THIS TRIBUNAL. THUS THE MIS CELLANEOUS APPLICATION FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND DESERVES TO BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE IMPUGNED ORDER WAS PAS SED ON 27.10.2017 DUE TO NON APPEARANCE AND NON PROSECUTION OF THE APPEAL BY THE ASSESSEE. SINCE THE 3 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 3 ASSESSMENT ORDER WAS PASSED UNDER SECTION 144 FOR W ANT OF APPEARANCE ON BEHALF OF THE ASSESSEE AND THE LD. CIT (A) HAS ALSO DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF ANY SUBMISSIONS, DETAILS OR EVIDENCE IN SUP PORT OF THE GROUNDS RAISED BY THE ASSESSEE, THEREFORE, EVEN IF THE ORDER WAS TO BE PA SSED ON MERITS BUT EX PARTE, THERE WAS NOTHING ON RECORD IN SUPPORT OF THE APPEAL OF T HE ASSESSEE TO BE CONSIDERED WHILE PASSING THE EX PARTE ORDER. THIS IS NOT THE F IRST TIME THAT THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON PROSECUTION BUT EVEN ON THE EARLIER OCCASION THE APPEAL OF THE ASSESSEE WAS DISMISSED VIDE ORDER DAT ED 15 TH JUNE, 2015. HOWEVER, THE SAID ORDER WAS SUBSEQUENTLY RECALLED BY THE TRI BUNAL IN THE MISCELLANEOUS APPLICATION NO. 16/JP/2016 VIDE ORDER DATED 23 RD MARCH, 2016. DESPITE THE APPEAL OF THE ASSESSEE WAS EARLIER DISMISSED, THE ASSESSEE WAS NEVER SINCERE IN PROSECUTION AND APPEARING IN THE PROCEEDINGS BEFORE THE TRIBUNA L. THUS THE CONDUCT OF THE ASSESSEE RIGHT FROM THE PROCEEDINGS BEFORE THE AO T ILL THE PROCEEDINGS BEFORE THIS TRIBUNAL IS NEGLIGENT AND VERY CASUAL. SINCE THERE IS A DELAY OF 412 DAYS IN FILING THE PRESENT APPLICATION AND THE ASSESSEE HAS TAKEN THE GROUND IN THE MISCELLANEOUS APPLICATION THAT THE ASSESSEE WAS NOT AWARE ABOUT T HE DATE OF HEARING AS WELL AS THE ORDER PASSED BY THE TRIBUNAL, WE DO NOT ACCEPT THIS CONTENTION OF THE ASSESSEE DUE TO THE FACT THAT WHEN THE APPEAL OF THE ASSESSEE WA S EARLIER DISMISSED AND RESTORED ON THE MISCELLANEOUS APPLICATION OF THE ASSESSEE, T HEN THE ASSESSEE WAS REQUIRED TO BE VIGILANT IN PROSECUTION OF THE APPEAL. FURTHER, THERE IS NOTHING ON RECORD THAT THE IMPUGNED ORDER OF THE TRIBUNAL SENT BY THE REGISTRY WAS NOT RECEIVED BY THE ASSESSEE. WE HAVE VERIFIED THE RECORD AND FOUND TH AT THE ORDER OF THE TRIBUNAL DATED 27 TH OCTOBER, 2017 WAS DULY SENT THROUGH REGISTERED A/D AND IN THE ABSENCE OF ANY RECORD TO SHOW THAT THE SAID ORDER WAS RECEI VED BACK UNSERVED, IT CANNOT BE 4 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 4 ACCEPTED THAT THE ASSESSEE HAS NOT RECEIVED THE ORD ER OF THE TRIBUNAL. THEREFORE, THE DECISION RELIED UPON BY THE ASSESSEE IN THE CAS E OF SHRI NARENDRA KUMAR CHATURVEDI VS. ITO (SUPRA) WILL NOT HELP THE CASE O F THE ASSESSEE. IT IS PERTINENT TO NOTE THAT IN THE SAID DECISION ON VERIFICATION OF T HE RECORD OF THE REGISTRY, IT WAS FOUND THAT THE ORDER SENT BY THE REGISTRY TO THE AS SESSEE WAS RECEIVED BACK UNSERVED AND SUBSEQUENTLY THE SAID ORDER WAS SENT T O THE ASSESSEE THROUGH THE ITO AND, THEREFORE, WHEN THE ASSESSEE RECEIVED THE ORDE R THROUGH ITO, THE LIMITATION WAS CONSIDERED TO BE RECKONED FROM THE DATE WHEN TH E ORDER WAS RECEIVED BY THE ASSESSEE. IN THE CASE IN HAND, THERE IS NOTHING TO SHOW THAT THE ASSESSEE DID NOT RECEIVE THE ORDER SENT BY THE REGISTRY WELL IN TIME . SINCE THE PROVISIONS OF SECTION 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 A ND THERE IS A DELAY OF 412 DAYS IS NOT MAINTAINABLE. THE LIMITATION FOR RECTIFICATION OF MISTAKE IS PROVIDED IN THE IT ACT ITSELF BUT THERE IS NO PROVISION FOR CONDONATION 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 TRIBUNA L 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 5 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 5 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 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 6 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 6 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 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 7 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 7 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. 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:- 8 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 8 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 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 9 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 9 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 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 CO NTENDED ON BEHALF OF THE PETITIONER THAT 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 T O RECALL ITS EARLIER ORDER DATED DECEMBER 6, 2007, FOR WHICH THE MISC ELLANEOUS APPLICATION WAS FILED ON AUGUST 6, 2012. IT WAS SUBMITTED ON BEHALF OF THE P ETITIONER THAT THE 10 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 10 APPLICATION UNDER SECTION 254(1) OF THE ACT WOULD B E THE ONLY PROVISION UNDER WHICH AN APPLICATION COULD BE MADE FOR RECALL OF AN ORDER, AS UNDER SECTI ON 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 APPLICATION IS TO CORRECT THE ERROR APPARENT FROM T HE RECORD. THE CONSEQUENCE OF SUCH RECTIFICATION APPLICA TION 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 CONSEQUENCE OF RECTIFYING THE ORIGINAL ORDER. IT IS PERTINENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT P ROHIBIT THE 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 ASST T. 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 REC ORD 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, TH E TRIBUNAL DISMISSED THE APPEAL OF STOCK EXCHANGE HOLDING THAT I T WAS NOT ENTITLED TO EXEMPTION UNDER SECTION 11 READ WITH SECTION 12 OF THE ACT. ON NOVE MBER 13, 2000, THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SE CTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATE D SEPTEMBER 5, 2 001, 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 HIGH COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001. THE ABOVE CHALLENGE BY THE REVENUE WAS TURNED DOWN BY THE GUJARAT HIGH 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 INDING DECISIONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECT ED BY THE TRIBUNAL UNDER SECT ION 254(2) OF THE ACT. THE SUPREME COURT HELD THAT 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 D ATED 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 APPLICATION WOULD BE AN AP PLICATION FOR RECTIFICATION OF THE ORDER DATED DECEMBER 6, 2007, AND WOULD ST AND GOVERNED BY SECTION 254(2) OF THE ACT. 11 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 11 17. IN THE FACTS OF THE PRESENT CASE THERE CAN BE NO DE NIAL THAT THE ORDER DATED DECEMBER 6, 2007, SUFFERS FROM AN ERROR APPARENT FR OM 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 CONSE QUENCE OF RECTIFYING AN ORDER UNDER SECTION 254(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 APPELLANT IS BARRED BY LIMITATION UNDER SECTION 254 (2) OF THE ACT AS IT WAS FILED BEYOND A PERIOD OF FOUR YEARS FROM THE ORDER SOUGHT TO BE RECTIFIED. 18. BEFORE CONCLUDING, WE WOULD LIKE TO MAKE IT CLEAR T HAT AN ORDER PASSED IN BREACH OF RULE 24 OF THE TRIBUNAL RULES, IS AN IRRE GULAR ORDER AND NOT A VO ID 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 BINDING TILL IT IS SET ASIDE BY A COMPETENT TRIBUNAL. IN FA CT, THE APEX COURT IN THE SULTAN 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 NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDIT Y 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 WILL REMAI N AS EFFECTIVE FOR ITS OSTENSIBLE PURPOSE AS THE MOST IMPECCABLE OF ORDERS .' THIS MUST BE EQU ALLY 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 I S WELL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SUCH A DECREE MUST BE SET ASIDE I F 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 TH IS CASE ALSO THE PERIOD OF FOUR YEARS FROM THE DATE 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 ANSW ER THE QUESTIONS ARISING IN THIS CASE AS RAISED BY US IN 12 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 12 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 RECALL OF AN ORDER FA LLS UNDER SECTION 254(2) OF THE ACT AND NOT UNDER SECTI ON 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 THE TRIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS APPLICATION BY ITS ORDER 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.' 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 AP PLICATION FILED BELATEDLY IS NOT 13 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 13 MAINTAINABLE BEING BARRED BY LIMITATION PROVIDED UN DER SECTION 254(2) OF THE ACT AND ACCORDINGLY THE SAME IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 19/07/20 19. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 19/07/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI LALA RAM SHARMA, JAIPUR. 2. THE RESPONDENT THE ITO WARD 7(4), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 43/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 14 MA NO. 43/JP/2019 SHRI LALA RAM SHARMA, JAIPUR. 14