DCIT, LTU, MUMBAI V. TCS E-SERVE LTD, MUMBAI

MA 491/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 6046 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2002-2003
• Appeal Filed On: 29-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JYOTHILAKSHMI NAYAK
• Keywords: Period of limitation; Condonation of delay
• Section: 201; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI G. MANJUNATHA , ACCOUNTANT MEMBER M.A. NO. 491/MUM./2019 ( ARISING OUT OF ITA NO. 3927 /MUM./201 0 ) ( ASSESSMENT YEAR : 20 02 03 ) DY. COMMISSIONER OF INCOME TAX LARGE TAXPAYER UNIT CENTRAL CIRCLE 1, MUMBAI . APPELLANT V/S TCS E SERVE LTD. 9 TH FLOOR, NARIMAN BUILDING NARIMAN POINT, MUMBAI 400 021 PAN AAACC4480F . RESPONDENT ASSESSEE BY : SHRI NIRAJ SHETH REVENUE BY : SMT. JYOTHILAKSHMI NAYAK DATE OF HEARING 29 .11.2019 DATE OF ORDER 14.02.2020 O R D E R PER SAKTIJIT DEY. J.M. BY THIS APPLICATION PURPORTEDLY FILED UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ), THE REVENUE SEEKS RECTIFICATION OF THE ORDER DATED 2 4 TH JANUARY 201 8, PASSED IN ITA NO.3927/MUM./2010 . 2. AT THE VERY OUTSET, THE LEANED COUNSEL FOR THE ASSESSEE RAISING A PRELIMINARY OBJECTION SUBMITTED THAT THE PRESENT APPLICATION FILED BY 2 TCS E SERVE LTD. THE REVENUE BEING BARRED BY LIMITA TION CANNOT BE ENTERTAINED. ELABORATING FURTHER, HE SUBMITTED , THE REVENUE HAS NOT FILED THE MISC. APPLICATION WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF THE ORDER PASSED BY THE TRIBUNAL. THEREFORE , IT IS BARRED BY LIMITATION. 3. ON THE BASIS OF SUBMISSI ONS MADE BY THE LEANED COUNSEL FOR THE ASSESSEE, THE LEARNED DEPARTMENTAL REPRESENTATIVE WAS CALLED UPON TO OBTAIN A REPORT FROM THE ASSESSING OFFICER REGARDING DATE OF RECEIPT OF THE APPEAL ORDER PASSED BY THE TRIBUNAL. IN RESPONSE TO THE QUERY RAISED BY THE BENCH, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS FURNISHED A LETTER BEARING NO. AC IT(LTU 1)/TCS E SERVE/JUDICIAL/19 20, DATED 14 TH NOVEMBER 2019, OF THE ACIT (LTU 1), MUMBAI, RECEIVED FROM THE ASSESSING OFFICER, WHEREIN, HE HAS STATED THAT THE APPEAL ORDER PASSED BY THE TRIBUNAL IN APPEAL ITA NO. 3927/MUM./2010, WAS RECEIVED IN THE O/O THE PCIT 12, ON 7 TH MAY 2018 AND A COPY OF THE SAID ORDER WAS FORWARDED TO THE ASSESSING OFFICER ON 15 TH MAY 2018. AS PER SECTION 254(2) OF THE ACT, THE TRIBUNAL IS EMPOWERED TO RECTIFY ANY MISTAKE APPARENT FROM RECORD AT ANY TIME WITHIN SIX MONTHS FROM TH E END OF THE MONTH IN WHICH THE ORDER WAS PASSED , IF , ANY MISTAKE IN THE ORDER IS BROUGHT TO ITS NOTICE EITHER BY THE ASSESSEE OR BY THE ASSESSING OFFICER. THUS, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE ACT IS CIRCUMSCRIBED BY LIMITATION. KEE PING IN VIEW THE AFORESAID STATUTORY PROVISION, IF WE EXAMINE THE FACTS OF THE PRESENT CASE, IT IS VERY MUCH CLEAR THAT TH E ORDER SOUGHT TO BE RECTIFIED BY THE REVENUE 3 TCS E SERVE LTD. WAS SERVED UPON IT ON 7 TH MAY 2018. W HEREAS, THE APPLICATION UNDER SECTION 254(2) OF THE ACT HAS BEEN FILED ON 29 TH AUGUST 2019. IN OTHER WORDS, THE PRESENT APPLICATION HAS BEEN FILE D AFTER THE EXPIRY OF SIX MONTH PERIOD PROVIDED UNDER SE CTION 254(2) OF THE ACT. 4. T HE LEARNED DEPARTMENTAL REPRESENTATIVE HAS REQUESTED FOR CONDONATION OF DELAY I N FILING THE PRESENT APPLICATION, OF COURSE, WITHOUT FILING ANY APPLICATION EXPLAINING THE REASON OF DELAY. HOWEVER , ON A PERUSAL OF THE STATUTORY PROVISIONS , MORE PARTICULARLY THE PROVISION CONTAINED UNDER SECTION 254(2) OF THE ACT, WE ARE OF THE CONSIDER ED OPINION THAT THERE IS NO PROVISION UNDER THE ACT EMPOWER ING THE TRIBUNAL TO CONDONE THE DELAY IN FILING THE APPLICATION UNDER SECTION 254(2) OF THE ACT. IT IS RELEVANT TO OBSERVE , THOUGH , SUB SECTIO N (5) OF SECTION 253 OF THE ACT EMPOWERS THE TRIBUNAL T O CONDONE THE DELAY IN FILING ANY APPEAL OR CROSS OBJECTION BEYOND THE PERIOD OF LIMITATION, HOWEVER, NO SUCH SPECIFIC POWER HAS BEEN CONFERRED UPON THE TRIBUNAL WHILE DEALING WITH AN APPLICATION SEEKING RECTIFICATION UNDER SECTION 254(2) OF THE ACT. TH E T RIBUNAL BEING A CREATURE OF THE STATUTE IS BO UND BY THE STATUTORY PROVISIONS. THEREFORE, IN ABSENCE OF AN Y EXPRESS PROVISION EMPOWERING THE TRIBUNAL TO CONDONE THE DELAY UNDER SECTION 254(2) OF THE ACT, NO SUCH POWER CAN BE EXERCISED BY THE TRIBUNAL. THE FOLLOWING DECISION CITED BY THE LEANED COUNSEL FOR THE ASSESSEE SUPPORTS THIS VIEW: 4 TCS E SERVE LTD. I) BHARAT PETROLEUM CORP ORATION LTD. V/S ITAT, [2013] 359 ITR 371 (BOM.); AND II) S HRI DILIP VISINDAS BA DLANI V/S ACIT, M.A. NO.181/MUM./ 2015, DATED 18.11.2015. 5. IN VIEW OF THE AFORESAID, THE PRESENT MISC. APPLICATION FILED BY THE REVENUE BEING GROSSLY BARRED BY LIMITATION CANNOT BE ENTERTAINED. 6. IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2020 SD/ - G. MANJUNATHA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.02.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI