BHARAT PETROLEUM CORPORATION LTD, V. ASST CIT RG 2(1),

MA 514/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0307 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2000-2001
• Appeal Filed On: 04-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRI
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay
• Section: 148; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI B BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI RAJENDRA, AM MISCELLANEOUS APPLICATION NO.514/MUM/2012 ARISING OUT OF ITA NO.4192/MUM/2004 (ASST YEAR 2000-01) BHARAT PETROLEUM CORPORATION LTD TAXATION SECTION, 3 RD FLOOR BHARAT BHAVAN 2, 4 & 6 CURRIMBHOY ROAD\BALLARD ESTATE MUMBAI 400 001 VS THE ASST COMMR OF INCOME TAX RANGE 2(1), MUMBAI (APPLICANT ) (RESPONDENT ) PAN NO. AAACB2902M ASSESSEE BY SHRI J D MISTRI REVENUE BY SHRI MOHIT JAIN DT.OF HEARING 8 TH MARCH, 2013 DT OF PRONOUNCEMENT 10 TH APRIL 2013 ORDER PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER OF THIS TRIBUNAL DATED 6 TH DEC 2007 WHEREBY THE APPEAL OF THE ASSESSEE WAS DI SMISSED IN LIMINE FOR WANT OF PROSECUTION. 2 SINCE THIS MISCELLANEOUS APPLICATION HAS BEEN FIL ED AFTER THE EXPIRY OF FOUR YEARS; THEREFORE, THE ISSUE OF LIMITATION HAS ARISE N IN RESPECT OF THE MAINTAINABILITY OF THE APPLICATION. 2.1 SHRI JAHANGIR D J MISTRI, THE SENIOR COUNSEL ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THE PERIOD OF LIMITATION PROVIDED U /S 254(2) IS NOT APPLICABLE FOR RECALLING OF THE IMPUGNED ORDER AS PER RULE 24 OF T HE INCOME TAX APPELLATE TRIBUNAL RULES. HE HAS RELIED UPON THE DECISION OF THE HON BLE ALLAHABAD HIGH COURT IN THE MA NO. 514/M/2012 . 2 CASE OF INCOME-TAX OFFICER V. SINGAR SINGH (S.B.) A ND SONS, REPORTED IN 75 ITR 646, AND SUBMITTED THAT AS HELD BY THE HONBLE HIGH COURT, T HE PROVISIONS OF SECTION 254(2) DOES NOT APPLY TO THE PROCEEDINGS FOR RECALLING OF THE ORDER WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR NON PROSECUTION. H E HAS FURTHER CONTENDED THAT THE TRIBUNAL HAS THE INHERENT JURISDICTION TO SET ASIDE THE ORDER, WHICH HAS BEEN PASSED BY COMMITTING AN ERROR ITSELF AND WHICH HAS CAUSE P REJUDICE TO A PARTY IN THE CASE. HE HAS THUS CONTENDED THAT THE LIMITATION PROVIDED UNDER SECTION 254(2) DOES NOT APPLY FOR RECTIFICATION OF WRONG COMMITTED BY THE T RIBUNAL ITSELF. 2.2 THE SR LD COUNSEL HAS THEN REFERRED AND RELIED UPON THE DECISION OF THE HONBLE KERALA HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME-TAX V. INCOME-TAX APPELLATE TRIBUNAL & ANOTHER REPORTED IN 120 ITR 23 1 AND SUBMITTED THAT POWER TO SETTING ASIDE THE EXPARTE ORDER IS EXTENDED U/S 254 (1) OF THE ACT AND NOT U/S 254(2). THEREFORE, THE LIMITATION PROVIDED U/S 254(2) DOES NOT APPLY IN THE PROCEEDINGS FOR SETTING ASIDE/RECALLING OF THE EXPARTE ORDER. 2.3 THE LD SR COUNSEL THEN REFERRED AND RELIED UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF KHUSHALCHA ND B. DAGA V. SURENDRAN (T.K.), 4TH ITO REPORTED IN 85 ITR 48 AND SUBMITTED THAT THE TR IBUNAL SHOULD HAVE DISPOSED OFF THE APPEAL ON MERIT AND SHOULD NOT HAVE DISMISSED I N LIMINE AS HELD BY THE HONBLE JURISDICTIONAL HIGH COURT. THE LD SR COUNSEL HAS T HEN RELIED UPON THE DECISION OF THE NAGPUR SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE O F BHILAI ENGINEERING CORPORATION LTD VS DCIT REPORTED IN 81 ITD 282 AND SUBMITTED TH AT THE SPECIAL BENCH OF THIS TRIBUNAL HAS HELD THAT THE LIMITATION PROVIDED U/S 254(2) IS APPLICABLE ONLY IN THE CASES WHEN THE TRIBUNAL SUO-MOTU PROPOSED TO AMEND THE ORDER FOR RECTIFICATION OF THE MISTAKE. THUS, THE LD SR COUNSEL FORCEFULLY CO NTENDED THAT FOR SETTING ASIDE/RECALLING OF EXPARTE ORDER WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED MA NO. 514/M/2012 . 3 IN LIMINE FOR NON PROSECUTION, THE LIMITATION PROVI DED U/S 254(2) HAS NO APPLICATION, RATHER THE TRIBUNAL HAS INHERENT POWERS TO SET ASID E SUCH AN ORDER WHICH HAS CAUSE PREJUDICE TO THE ASSESSEE. 2.4 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THERE IS NO OTHER PROVISION IN THE STATUE UNDER WHICH THE ORDER OF THE TRIBUNAL CA N BE AMENDED FOR THE PURPOSE OF RECTIFICATION OF THE MISTAKE EXCEPT SECTION 254(2). RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES IS PROCEDURAL IN NATURE AN D DOES NOT EXTEND ANY JURISDICTION WHICH HAS NOT PROVIDED UNDER THE MAIN PROVISIONS OF THE STATUE. THUS, THE LD DR HAS SUBMITTED THAT THE APPLICATION OF THE ASSESSEE IS N OT MAINTAINABLE BEING BARRED BY LIMITATION. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE RELEVANT MATERIAL ON RECORD; DECISIONS RELIED UPON BY THE PA RTIES AS WELL AS THE PROVISIONS UNDER THE STATUE. THERE IS NO DISPUTE ON THE FACT THAT THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE AFTER TH E EXPIRY OF FOUR YEARS AND ALSO THERE IS NO DISPUTE REGARDING THE KNOWLEDGE AND REC EIPT OF THE IMPUGNED ORDER OF THE TRIBUNAL BY THE APPLICANT. THE JURISDICTION OF THE TRIBUNAL TO DISPOSE OFF THE APPEAL IS CONFERRED BY SECTION 254(1) WHICH READS A S UNDER: 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH T HE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT . 3.1 RULES 24 AND 25 OF THE INCOME TAX APPELLATE TRI BUNAL RULES PROVIDE PROCEDURE FOR THE PROCEEDINGS IN A SITUATION WHEN THE APPELLA NT OR HIS/HER REPRESENTATIVE DID NOT APPEAR ON THE DATE OF HEARING OF THE APPEAL. I N SUCH CASES, THE TRIBUNAL MAY HEAR THE APPEAL EXPARTE AND DISPOSE OFF ON MERITS. THUS, APART FROM PASSING SUCH ORDER AS IT THINK FIT, THE TRIBUNAL MAY DISPOSE OF THE APPEAL EXPARTE ON MERITS. FOR MA NO. 514/M/2012 . 4 READY REFERENCE, WE QUOTE RULES 24 OF THE INCOME TA X APPELLATE TRIBUNAL RULES AS UNDER: 24 . WHERE, ON THE DAY FIXED FOR HEARING OR ON ANY OTHER DATE TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT DOES NOT APPEAR IN PERSON OR THROUGH AN AUTHORIZED REPRESENTATIVE WHEN TH E APPEAL IS CALLED ON FOR HEARING, THE TRIBUNAL MAY DISPOSE OF TH E APPEAL ON MERITS AFTER HEARING THE RESPONDENT; PROVIDED: THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDE D ABOVE AND THE APPELLANT APPEARS AFTERWARDS AND SATISF IES THE TRIBUNAL THAT THERE WAS SUFFICIENT CASE FOR HIS NON APPEARANCE , WHEN THE APPEAL WAS CALLED ON FOR HEARING THE TRIBUNAL SHALL MAKE AN ORDER SETTING ASIDE THE EXPARTE ORDER AND RESTORING THE AP PEAL. 3.2 IT IS TRAIT LAW THAT THE RULES DO NOT EXPEND OR CIRCUMSCRIBE THE JURISDICTION OF THE TRIBUNAL CONFERRED BY THE STATUTE. THE RULE CO NTAINS ONLY PROCEDURAL ASPECT OF THE PROCEEDINGS BEFORE THE TRIBUNAL. IT IS SETTLED LEGAL PROPOSITION THAT THE TERMS AS IT THINK FIT, USED IN SEC. 254(1) IS WIDE ENOUGH AND I NCLUDES DISMISSAL OF APPEAL FOR NON PROSECUTION, IF DESPITE NOTICE OF HEARING, THE APPE LLANT OR REPRESENTATIVE DOES NOT APPEAR ON THE DATE WHEN THE APPEAL IS CALLED FOR HE ARING. THIS VIEW HAS BEEN FORTIFIED BY VARIOUS DECISIONS AS UNDER: I) HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS CWT(223 ITR 480(MP); II) DELHI BENCH OF THE TRIBUNAL IN THE CASE OF CIT VS MULTIPLAN (INDIA) PVT LTD (38 ITD 320 (DEL). III)COMMISSIONER OF INCOME-TAX V. BHATTACHARGEE (B. N.) 118 ITR 461 IV) HONBLE JURISDICTIONAL HIGH COURT, IN THE CASE CHEMIPOL VS UNION OF INDIA IN CENTRAL EXCISE APPEAL N O. 62OF 009 4 IN THE CASE OF SINGAR SINGH (S.B.) AND SONS (SUPR A), THE SHORT QUESTION BEFORE THE HONBLE ALLAHABAD HIGH COURT WAS WHETHER THE TR IBUNAL HAD INHERENT JURISDICTION TO RECTIFY A WRONG THAT IT HAD INADVERTENTLY DONE T O THE ASSESSEE BY NOT CONSIDERING A VERY MATERIAL GROUND AND FOR THAT REASON REHEAR T HE MATTER AND DO JUSTICE MA NO. 514/M/2012 . 5 BETWEEN THE PARTIES. THEREFORE, THE ISSUE WAS WHET HER THE TRIBUNAL HAS THE POWER TO UNDO A MISCHIEF WHICH HAS BEEN COMMITTED BY ITSELF BY ITS ACT TO THE DETRIMENT OF A PARTY WITHOUT THAT PARTY BEING RESPONSIBLE FOR IT. IN THAT VIEW OF THE MATTER, THE HONBLE HIGH COURT HAS HELD THAT THE INHERENT POWER S TO RECTIFY A WRONG COMMITTED BY ITSELF BY A COURT OR TRIBUNAL, IS NOT REALLY SPE AKING A POWER TO REVIEW. THE QUESTION BEFORE THE HONBLE HIGH COURT WAS WHETHER RECTIFICATION OF SUCH AN ERROR AMOUNTS TO REVIEW OF THE ORDER OR NOT AND THEREFORE , NO ISSUE OF ANY LIMITATION WAS FOR CONSIDERATION BEFORE THE HONBLE HIGH COURT IN THE SAID DECISION. 4.1 IT IS PERTINENT TO NOTE THAT IN THE CASE IN HAN D, THE IMPUGNED ORDER DATED 6.12.2007 DOES NOT SUFFER FROM ANY SUCH A MISTAKE O R MISCHIEF COMMITTED BY THE TRIBUNAL ITSELF SO AS TO RECTIFY THE SAME WITH THE OBJECT TO AVOID ANY PREJUDICE TO THE PARTY WHICH IS NOT RESPONSIBLE FOR IT. RATHER, THE IMPUGNED ORDER HAS BEEN PASSED BY THE TRIBUNAL BECAUSE THE ASSESSEE FAILED TO APPEAR BEFORE THE TRIBUNAL ON THE DAY WHEN THE APPEAL OF THE ASSESSEE WAS CALLED FOR HEAR ING. THE ASSESSEE HAS FILED TWO AFFIDAVITS IN SUPPORT OF THE MISCELLANEOUS APPLICAT ION. THE AVERMENTS IN BOTH THE AFFIDAVITS ARE IDENTICAL AS CONTAINED IN PARA 4 OF THE AFFIDAVIT AS UNDER: 4. THAT THE AFORESAID APPEAL WAS FIXED FOR HEARING O N 4.12.2007 AND ON SUCH DATE THE DEPONENT LEFT BPCL OFFICE SITUATED AT BALL ARD ESTATE, MUMBAI AT AROUND 10.10 AM BY TAXI TO APPEAR BEFORE THE HONBL E TRIBUNAL ON THE DATE FIXED BUT UNFORTUNATELY THE DEPONENT COULD REACH THE HONBLE TRIBUNAL AT AROUND 10.50 AM ONLY DUE TO HEAVY TRAFFIC JAM ON TH AT AND WHEN ENQUIRED ABOUT THE EXPECTED TIME FOR HEARING OF AFORESAID APP EAL, THE DEPONENT WAS INFORMED BY THE BENCH CLERK THAT HONBBLE BENCH HAD C ALLED OUT THE MATER AND AS NOBODY FROM BPCL WAS PRESENT IN THE COURT ROOM WHEN THE MATTER WAS CALLED, IT HAD DISMISSED THE APPEAL FOR WANT OF PROSECUTION. 4.2 IT IS CLEAR FROM THE AVERMENTS OF THE AFFIDAVIT S THAT THE REPRESENTATIVE OF THE ASSESSEE DID NOT APPEAR BEFORE THE TRIBUNAL ON 4.12 .2007 WHEN THE APPEAL OF THE ASSESSEE WAS CALLED FOR HEARING AND CONSEQUENTLY DI SMISSED FOR NON PROSECUTION. MA NO. 514/M/2012 . 6 THIS FACT OF NON APPEARANCE AND THE SUBSEQUENT ORDE R WAS KNOWN TO THE ASSESSEE ON THAT DAY I.E 4.12.2007; THOUGH THE ORDER WAS SIG NED ON A SUBSEQUENT DATE I.E. ON 6 TH DEC 2007. IT IS MANIFEST FROM THE RECORD AS WELL A S THE AVERMENTS MADE IN THE AFFIDAVIT THAT THE ASSESSEE IS RESPONSIBLE FOR THE IMPUGNED ORDER PASSED BY THE TRIBUNAL AND THEREFORE, THIS CASE DOES NOT FALL UND ER THE CATEGORY OF WRONG COMMITTED BY THE TRIBUNAL ITSELF. 5 IN THE CASE OF COMMISSIONER OF INCOME-TAX V. INCO ME-TAX APPELLATE TRIBUNAL & ANOTHER (SUPRA), THE ISSUE BEFORE THE HONBLE KER ALA HIGH COURT WAS WHETHER THE TRIBUNAL HAS JURISDICTION TO SET ASIDE THE EXPARTE ORDER PASSED ON MERITS. THEREFORE, THE SUBJECT MATTER BEFORE THE HONBLE HIGH COURT WA S THAT THE PROVISIONS OF RULES 25 OF THE INCOME TAX APPELLATE TRIBUNAL RULES ENABLING THE TRIBUNAL TO HEAR THE APPEAL EXPARTE, BUT NO SPECIFIC PROVISION WAS MADE TO SET ASIDE THE ORDER PASSED ON MERITS. 5.1 IT IS PERTINENT TO NOTE THAT THE ISSUE BEFORE T HE HONBLE HIGH COURT WAS IN RESPECT OF THE UN-AMENDED PROVISIONS OF RULE 25 OF THE INCOME TAX APPELLATE TRIBUNAL RULES WHEREIN THE PROCEDURE OF HEARING THE APPEAL HAS BEEN PROVIDED WHEN THE RESPONDENT DID NOT APPEAR ON THE DAY WHEN THE APPEAL WAS CALLED FOR HEARING AND THEREFORE, THE TRIBUNAL COULD PROCEED E XPARTE FOR DECIDING THE APPEAL ON MERIT. 5.2 SINCE THE PROVISIONS OF RULE 25 HAS BEEN AMENDE D AND UNDER THE AMENDED RULE 25, THERE IS A SPECIFIC PROVISION WHICH ENABLE THE TRIBUNAL TO RECALL/SET ASIDE THE EXPARTE ORDER PASSED ON MERIT, IF THE RESPONDENT SA TISFY THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON APPEARANCE WHEN THE AP PEAL WAS CALLED FOR HEARING. MA NO. 514/M/2012 . 7 WE QUOTE THE AMENDED PROVISIONS OF RULE 25 OF THE I NCOME TAX APPELLATE TRIBUNAL AS UNDER: 25. WHERE, ON THE DAY FIXED FOR HEARING OR ANY OTHER DA Y TO WHICH THE HEARING MAY BE ADJOURNED, THE APPELLANT APPEARS AND THE RESPONDENT DOES NOT APPEAR IN PERSON OR THROUGH AN AUT HORIZED REPRESENTATIVE WHEN THE APPEAL IS CALLED ON FOR HEARIN G, THE TRIBUNAL MAY DISPOSE OF THE APPEAL ON MERITS AFTER HEARING THE APPELLANT; PROVIDED THAT WHERE AN APPEAL HAS BEEN DISPOSED OF AS PROVIDED ABOVE AND THE RESPONDENT APPEARS AFTERWARDS AND SATIS FIED THE TRIBUNAL THAT THERE WAS SUFFICIENT CAUSE FOR HIS NON A PPEARANCE WHEN THE APPEAL WAS CALLED ON FOR HEARING, THE TRIBUNAL SHA LL MAKE AN ORDER SETTING ASIDE THE EXPARTE ORDER AND RESTORE THE APP EAL. 5.3 THEREFORE, THE CONTROVERSY BEFORE THE HONBLE K ERALA HIGH COURT WAS ONLY REGARDING THE PROVISIONS OF RULE 25 PRESCRIBING THE HEARING OF APPEAL EXPARTE; BUT DID NOT PRESCRIBE THE SETTING ASIDE THE ORDER PASSE D ON MERIT AND IN SUCH A SITUATION, THE HONBLE HIGH COURT HAS HELD THAT THE TRIBUNAL H AS INHERENT POWERS TO SET ASIDE SUCH AN ORDER IN THE INTEREST OF JUSTICE. THEREFORE , THE SAID DECISION OF THE HONBLE KERALA HIGH COURT WOULD NOT HELP THE CASE OF THE AS SESSEE. 6 IN THE CASE OF KHUSHALCHAND B. DAGA V. SURENDRAN (T.K.) (SUPRA), THE GRIEVANCE OF THE ASSESSEE BEFORE THE HONBLE HIGH C OURT WAS AGAINST THE ORDER PASSED ON 24.10.1961 BY THE TRIBUNAL WHEREBY THE AP PEAL OF THE ASSESSEE WAS DISMISSED FOR DEFAULT AND SUBSEQUENTLY, THE ASSESSE E FILED A MISCELLANEOUS APPLICATION AFTER THE EXPIRY OF FOUR YEARS FROM THE DATE F THE ORDER WHICH WAS DISMISSED BY THE TRIBUNAL AS BARRED BY LIMITATION. 6.1 THE ASSESSEE CONTENDED BEFORE THE HONBLE HIGH COURT THAT THE ORDER OF THE TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED FOR DEFAULT WAS NOT SERVED UPON HIM AND HE CAME TO KNOW OF THE SAID ORD ER FOR THE FIRST TIME ON 4.1.1968. THE HONBLE HIGH COURT PROCEEDED WITH THE MATTER IN THE LIGHT OF THE FACT MA NO. 514/M/2012 . 8 THAT THE UN-AMENDED PROVISIONS OF RULE 24 OF THE IN COME TAX APPELLATE TRIBUNAL RULES HAD BEEN STRUCK DOWN BEING REPUGNANT TO SECTI ON 33(4) OF THE I T ACT 1922 BECAUSE THERE WAS NO PROVISION IN THE SAID RULE FOR SETTING ASIDE THE EXPARTE ORDER WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED FO R NON PROSECUTION. THE HONBLE HIGH COURT HAS OBSERVED AS UNDER: IN THE PRESENT CASE, IN VIEW OF THE AFORESAID DECIS ION OF THE SUPREME COURT ON WHICH RELIANCE HAS BEEN PLACED BY MR. NARIMAN, TH ERE COULD BE NO DOUBT THAT THE IMPUGNED ORDER OF THE TRIBUNAL DATED 24 TH OCTOBER, 1961, WOULD NOT ONLY BE WITHOUT JURISDICTION BUT ALSO CONT RARY TO THE MANDATORY PROVISION CONTAINED IN SECTION 33(4) OF THE ACT WHI CH REQUIRED THE TRIBUNAL TO DECIDE THE APPEAL ON MERITS IRRESPECTIVE OF WHETHER THE APPELLANT WAS PRESENT OR ABSENT AND AS SUCH THE SAME WILL HAVE TO BE REGARDED AS A NULLITY .. IT IS TRUE THAT IN THE PRESENT CASE THE PETITIONER OR HIS REPRESENTATIVE DID NOT REMAIN PRESENT ON 24TH OCTOBER, 1961, IN SPITE OF NOT ICE HAVING BEEN SERVED UPON HIM BUT THAT IS BESIDE THE POINT. ON THAT DAY IN DISMISSING THE APPEAL FOR DEFAULT OF APPEARANCE THE TRIBUNAL UNDOUBTEDLY COMMI TTED A MISTAKE AS ACCORDING TO THE SUPREME COURT THE TRIBUNAL HAD NO PO WER TO DO SO BUT IT WAS UNDER AN OBLIGATION TO DECIDE THE APPEAL ON MERI TS UNDER SECTION 33(4) AND THAT MISTAKE ON THE PART OF THE TRIBUNAL WOULD OBVIOUSLY CAUSE SERIOUS PREJUDICE TO THE PETITIONER IN THE MATTER OF PROSECUT ING EFFICIENTLY THE FURTHER REMEDIES BY WAY OF REFERENCE TO THE HIGH COURT AND AN APPEAL TO THE SUPREME COURT. IN MY VIEW, THEREFORE, THE TRIBUNAL O UGHT TO HAVE DIRECTED THE APPEAL TO BE REHEARD ON MERITS, EVEN ON THE BASI S THAT ITS PREVIOUS ORDER DATED 24TH OCTOBER, 1961, WAS AN ERRONEOUS ORDER OR AN ORDER CONTAINING AN ERROR APPARENT ON THE FACE OF THE ORDER. IN VIEW OF THE CONCLUSION WHICH I HAVE REACHED ON THE FIRST TWO SUBMISSIONS MADE BY MR. NARIMAN, I DO NOT THINK IT IS NECESSARY TO GO INTO THE QUESTION AS TO WHETHER THE MISCELLANEOUS APPLICATIO N PREFERRED BY THE APPLICANT FOR RECTIFICATION OF THE MISTAKE WAS BARRED BY LIMITATION OR NOT. 6.2 THUS, IT IS CLEAR THAT THE SAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IS BASED ON THE DECISION OF THE HONBLE SUPREME COURT WHEREBY THE RULE 24 WAS HELD AS ULTRA VI RES BEING REPUGNANT TO THE PROVISIONS OF SEC. 33(4). THE HONBLE HIGH COURT HAS LEFT UPON THE ISSUE OF LIMITATION AS NO FINDING WAS GIVEN ON THE SAID ISSUE. SINCE THE RULE 24 HAS BEEN AMENDED AND AS PER THE AMENDED RULES, THERE IS A PROVISION FOR SETTING ASIDE /RECALLING OF THE EXPARTE ORDER WHEREBY THE APPEAL OF THE ASSESSEE WA S DISMISSED FOR NON PROSECUTION. MA NO. 514/M/2012 . 9 6.3 THE ISSUE BEFORE US IS NOT REGARDING THE VALIDI TY OF RULE 24; RATHER, THE ASSESSEE ITSELF HAS FILED THE PRESENT APPLICATION UNDER RULE 24 OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963. THEREFORE, THE ABOVE SAID DECI SION OF THE HONBLE HIGH COURT IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. 7 AS REGARDS THE DECISION OF THE NAGPUR SPECIAL BEN CH OF THIS TRIBUNAL IN THE CASE OF BHILAI ENGG CORPN LD (SUPRA), THE SAID DEC ISION HAS BEEN OVERRULED/REVERSED BY THE LARGER BENCH (5 MEMBERS) OF THIS TRIBUNAL IN THE CASE OF ARVINDBHAI H. SHAH VS ASSISTANT COMMISSIONER OF INCOME TAX REPORTED IN 91 ITD 101 WHEREIN THE LARGER BENCH OF THIS TRIBUNAL HAS HELD IN PARAS 24 TO 26 A S UNDER: 24. IN THE CASE OF SMT TARULATA SHYAM AND ORS. (SUP RA), S. 2(6A)(E) OF THE INDIAN IT ACT, 1922, CAME FOR CONSIDERATION WHICH CREA TED A FICTION FOR ITS APPLICABILITY IF AT THE TIME OF PAYMENT OF ADVANCE OR LOAN TO A SHAREHOLDER OF A COMPANY, IN WHICH PUBLIC ARE NOT SUBSTANTIALLY IN TERESTED AND TAX IS ATTRACTED ON THE LOAN OR ADVANCE TO THE EXTENT TO WHI CH THE COMPANY POSSESSES THE ACCUMULATED PROFITS, THE MOMENT THE L OAN OR ADVANCE IS RECEIVED. THE LOAN IN THIS CASE WAS REPAID BEFORE THE END OF THE YEAR AND A CONTENTION WAS RAISED THAT THE FICTION CREATED BY S. 2(6A)(E) WOULD NOT BE APPLICABLE. THE SUPREME COURT HELD THAT 'THE LANGUAG E OF SS. 2(6A)(E) AND 12(1B) IS CLEAR AND UNAMBIGUOUS. THERE IS NO SCOPE FO R IMPORTING INTO THE STATUTE WORDS WHICH ARE NOT THERE. SUCH IMPORTATION W OULD BE NOT TO CONSTRUE, BUT TO AMEND, THE STATUTE. EVEN IF THERE BE A CASUS OMISSUS THE DEFECT CAN BE REMEDIED ONLY BY LEGISLATION AND NOT BY JUDICIAL INTERPRETATION. ONCE IT IS SHOWN THAT THE CASE OF THE ASSESSEE COME S WITHIN THE LETTER OF THE LAW, HE MUST BE TAXED, HOWEVER GREAT THE HARDSHIP MAY APPEAR TO THE JUDICIAL MIND TO BE.' THE LANGUAGE OF S. 254(2) OF THE ACT, IN OUR OPINION, IS CLEAR AND UNAMBIGUOUS, AND AN ORDER CANNOT BE RECTIFI ED AFTER FOUR YEARS FROM THE DATE OF THE ORDER, BE THAT IN A PROCEEDINGS TAKEN SUO MOTU BY THE TRIBUNAL OR PURSUANT TO THE REQUEST OF EITHER PARTY. 25. IN THE CASE OF KM. SHARMA (SUPRA), THE ASSESSEE RE CEIVED INTEREST OF RS. 76,84,829 PURSUANT TO THE JUDGMENT OF THE DISTRICT MAGISTRATE, DT. 31ST JULY, 1991, ON COMPENSATION OF THE LAND ACQUIRED IN DECEMB ER, 1967. THE AO SERVED NOTICES UNDER S. 148 OF THE ACT FOR 16 ASST. Y RS. 1968-69 TO 1971-72 AND 1981-82 TO 1992-93 FOR BRINGING TO TAX THE INTEREST W HICH HAD ESCAPED ASSESSMENT IN THOSE YEARS. THE ASSESSEE CONTENDED T HAT THE ASSESSMENTS HAD ALREADY BECOME BARRED BY LIMITATION UNDER S. 149 AS ON 1ST APRIL, 1989, FOR WHICH THE RELEVANT PERIOD OF LIMITATION WAS FOUR YE ARS OR SEVEN YEARS DEPENDING UPON THE QUANTUM OF LIABILITY TO TAX. THE RE WAS. AN AMENDMENT IN MA NO. 514/M/2012 . 10 S. 150 LIFTING AN EMBARGO FOR PERIOD OF LIMITATION TO ENABLE THE REOPENING THE ASSESSMENT NOT ONLY ON THE BASIS OF ORDER PASSED IN PROCEEDINGS UNDER THE IT ACT BUT ALSO ON THE BASIS OF AN ORDER OF THE COURT IN ANY PROCEEDINGS UNDER ANY LAW. THIS PROVISION WAS PROSPECTIVE AND IN THAT CONTEXT THE SUPREME COURT HELD THAT THE AMENDMENT DID NOT ENABLE THE AUT HORITIES TO REOPEN ASSESSMENTS WHICH HAD BECOME FINAL DUE TO THE BAR OF LIMITATION PRIOR TO 1ST APRIL, 1989, AND THIS POSITION WAS EQUALLY APPLICABL E TO REASSESSMENTS PROPOSED ON THE BASIS OF ORDERS PASSED UNDER THE IT A CT OR UNDER ANY OTHER LAW. THE COURT HELD THAT THE PROVISIONS OF A FISCAL STATUTE, MORE PARTICULARLY, ONE REGULATING THE PERIOD OF LIMITATION, MUST RECEIV E A STRICT CONSTRUCTION. THE LAW OF LIMITATION IS INTENDED TO GIVE CERTAINTY AND FINALITY TO LEGAL PROCEEDINGS AND TO AVOID EXPOSURE TO RISK OF LITIGATION TO LITIG ANTS FOR AN INDEFINITE PERIOD ON FUTURE UNFORESEEN EVENTS. PROCEEDINGS WHICH HAD ATTAI NED FINALITY UNDER EXISTING LAW DUE TO BAR OF LIMITATION CANNOT BE HELD TO BE OPEN FOR REVIVAL UNLESS THE AMENDMENT PROVISION IS CLEARLY GIVEN RETROS PECTIVE OPERATION SO AS TO ALLOW UPSETTING OF PROCEEDINGS WHICH HAD ALREADY CONCLUDED AND ATTAINED FINALITY, IN THESE CIRCUMSTANCES, WHEN A PE RIOD OF LIMITATION OF FOUR YEARS IS PROVIDED UNDER S. 254(2) FOR RECTIFYING AN ORD ER, NO RECTIFICATION CAN BE MADE AFTER THAT PERIOD ON THE PRINCIPLE OF EQUITY A ND JUSTICE OR ON THE BASIS OF THEORY THAT JUSTICE SHOULD BE DONE, EVEN I F HEAVEN FALLS, AS IN OUR OPINION, EVEN PERIOD OF LIMITATION IS PART OF THE J URISPRUDENCE AND CANNOT BE BRUSHED ASIDE OR IGNORED TO GRANT RELIEF ON THE PRAYE R OF THE ASSESSEE OR REVENUE AFTER THE EXPIRY OF SAID PERIOD OF FOUR YEAR S. SIMILARLY, IN THE CASE OF S.P. GUPTA (SUPRA), THE SUPREME COURT HELD THAT OBVIO US OMISSION CAN BE MADE UP BY SUITABLE INTERPRETATION BUT THE COURT CANN OT SUPPLY SUPPOSED DEFICIENCIES AS IN THAT CASE INSTEAD OF DECLARING T HE LAW, IT WOULD BE MAKING LAW. 26. IN VIEW OF THE ABOVE DISCUSSION WE, THEREFORE, HO LD THAT TIME-LIMIT OF FOUR YEARS TO MAKE RECTIFICATION APPLIES BOTH TO SUO MOTU ACTION OF THE TRIBUNAL AS WELL AS TO ACTION TAKEN ON REQUEST OF THE PARTIES. TH E MISCELLANEOUS APPLICATION OF THE ASSESSEE FILED ON 11TH APRIL, 20 02, FOR RECTIFYING AN ORDER OF THE TRIBUNAL DT. 28TH APRIL, 1997, IS BARRED BY LIMIT ATION AND THE TRIBUNAL CANNOT MAKE ANY RECTIFICATION OF ITS ORDER ON THE PRAYER OF T HE ASSESSEE AS THE TIME- LIMIT OF FOUR YEARS FROM THE DATE OF THE ORDER HAS ALR EADY EXPIRED. WE DO NOT FIND ANY MERIT IN THE APPLICATION OF THE ASSESSEE. IT HAS ACCORDINGLY TO BE DISMISSED. 8 THE ISSUE IS NOW SETTLED AS COVERED BY THE LARGER BENCH OF THIS TRIBUNAL THAT THE TIME LIMIT OF FOUR YEARS TO MAKE RECTIFICATION APPLIES BOTH TO THE SUO-MOTU ACTION OF THE TRIBUNAL AS WELL AS TO THE ACTION TAKEN ON T HE REQUEST OF THE PARTY. 8.1 EVEN OTHERWISE, THE LIMITATION FOR RECTIFICATIO N OR AMENDMENT OF THE ORDER PASSED U/S 254(1) IS PROVIDED UNDER THE STATUTE ITS ELF U/S 254(2). THEREFORE, THE MA NO. 514/M/2012 . 11 PROVISIONS OF LIMITATION ACT DO NOT APPLY ON SUCH P ROCEEDINGS. THE LIMITATION PROVIDED U/S 254(2) IS FOUR YEARS WHICH ITSELF SHOW S THE INTENTION OF THE LEGISLATURE THAT ONCE THE TIME PERIOD FOR RECTIFICATION/AMENDMENT OF THE ORDER IS PROVIDED IS SUFFICIENT ENOUGH AND THEREFORE, THERE WAS NO REQUI REMENT AS FELT BY THE LEGISLATURE FOR PROVIDING ANY PROVISION OF CONDONATION OF DELAY . IN THE ABSENCE OF ANY PROVISION OF CONDONATION OF DELAY WITH RESPECT TO T HE PROCEEDINGS FOR SETTING ASIDE/RECALLING OF THE AMENDMENT OF THE ORDER OF TH E TRIBUNAL, THE MISCELLANEOUS APPLICATION FILED BEYOND FOUR YEARS DESERVES TO BE DISMISSED AS TIME BARRED. 8.2 EVEN FOR THE SAKE OF ARGUMENT, IF THE CONTENTIO N OF THE LD SR COUNSEL IS ACCEPTED THAT THE PROCEEDINGS FOR RECALL THE EXPART E ORDER DO NOT FALL U/S 254(2) AND THEREFORE, THE LIMITATION PROVIDED UNDER THIS S ECTION DOES NOT APPLY TO THE PROCEEDINGS, THEN IN OUR VIEW, THE LIMITATION AS PR OVIDED UNDER THE LIMITATION ACT FOR SETTING ASIDE THE EXPARTE ORDER WHEREBY THE CASE OF THE APPELLANT IS DISMISSED FOR DEFAULT WOULD BE APPLICABLE IN SUCH PROCEEDINGS. 8.3 THE LIMITATION FOR FILING OF APPLICATION UNDER ORDER (9) RULE (9) OF CPC FOR SETTING ASIDE THE EXPARTE ORDER IS 30 DAYS. THE ASSESSEE HA S NEITHER FILED ANY APPLICATION FOR CONDONATION OF DELAY NOR EXPLAINED THE CAUSE OF SUC H INORDINATE DELAY OF MORE THAN 4 YEARS. IN THE AFFIDAVIT, THE ASSESSEE HAS NO T EXPLAINED THE CAUSE AND PERIOD OF DELAY IN FILING THE PRESENT MISCELLANEOUS APPLIC ATION. FURTHER, THIS IS NOT A CASE OF NON RECEIPT OF THE IMPUGNED ORDER OR HAVING NO KNOW LEDGE ABOUT THE IMPUGNED EXPARTE ORDER. AS IT IS CLEAR FROM THE AVERMENTS M ADE IN THE APPLICATION AS WELL AS IN THE AFFIDAVITS THAT THE APPLICANT CAME TO KNOW ABOU T THE EXPARTE ORDER ON 4.12.2007 ITSELF AND THEREAFTER ALSO IN RECEIPT OF THE IMPUG NED ORDER. MA NO. 514/M/2012 . 12 9 IN THESE FACTS AND CIRCUMSTANCES, THE ASSESSEE HA S NOT MADE OUT ANY CASE TO SHOW ANY GOOD REASON MUCH LESS A SUFFICIENT REASON FOR THE DELAY OF MORE THAN 4 YEARS. 10 IN VIEW OF THE ABOVE DISCUSSIONS AND IN THE FACT S AND CIRCUMSTANCES OF THE CASE, WE HOLD THAT THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS BARRED BY LIMITATION AND CONSEQUENTLY, DISMISSED. 11 IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCEMENT IN THE OPEN COURT ON THIS 10 TH DAY OF APRIL 2013 SD/- SD/- ( RAJENDRA ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 10 TH APRIL 2013 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI