Gayatri Infra Ventures Limited, Hyderabad, Hyderabad V. Asst. Commissioner of Income Tax, Circle-2(3), Hyderabad

MA 55/Hyd/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6872 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B K VISHNU PRIYA
• Assessee Lawyers: M MADHUSUDHAN
• Keywords: Period of limitation; Condonation of delay
• Section: 11

Judgement Text

MA NO 55 OF 2018 GAYA TRI INFRA VENTURES LTD HYDERABAD. PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO.55/HYD/2018 (ARISING OUT OF ITA NO.1399/HYD/2016) (ASSESSMENT YEAR: 2009-10) M/ S. GAYATRI INFRA VENTURES LIMITED, HYDERABAD PAN: AADCG1028Q VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 2(3) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI M. MADHU SUDHAN FOR REVENUE : SMT. B.K. VISHNUPRIYA, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS APPLICATION IS FILED BY THE ASSESSEE SEEKING R ECALL OF THE ORDER OF THE TRIBUNAL DATED 27.07.2017 DISMI SSING THE ASSESSEES APPEAL FOR NON-PROSECUTION. 2. IT IS SEEN THAT THE APPLICATION IS FILED AFTER T HE DUE DATE AS PRESCRIBED U/S 254(2) OF THE ACT AND THEREFORE, THE REGISTRY HAS RAISED AN OBJECTION THAT THE MISCELLANEOUS APPLICAT ION IS NOT MAINTAINABLE. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAD PREPARED THE APPLICATION WITHIN TH E TIME AND DATE OF HEARING: 29.06 . 2 01 8 DATE OF PRONOUNCEMENT: 18.07.2018 MA NO 55 OF 2018 GAYA TRI INFRA VENTURES LTD HYDERABAD. PAGE 2 OF 5 WAS SENT TO THE ITAT TO BE FILED BUT BY MISTAKE, TH E SAME WAS FILED WITH THE DRS OFFICE AND IT WAS ONLY LATER THAT THE ASSESSEE HAD REALIZED THAT THE M.A. WAS NOT FILED IN ITAT AND SU BSEQUENTLY, THE MA WAS FILED ON 18.01.2018. THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR CONDONATION OF DELAY IN FILING OF THE AP PEAL AND REQUESTED FOR RECALL OF THE ORDER. 4. THE LEARNED DR WAS ALSO HEARD. 5. WE FIND THAT W.E.F 1.6.2016, THE STATUTE HAS PRO VIDED ONLY A PERIOD OF SIX MONTHS FROM THE END OF THE MON TH IN WHICH THE ORDER WAS PASSED FOR FILING OF M.A. U/S 254(2) OF THE ACT AND THE TRIBUNAL DOES NOT HAVE THE POWER TO CONDONE DEL AY IN FILING OF THE M.A BEYOND THE SAID PERIOD. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPN. LTD VS. ITAT (2013) 359 ITR 371, WHILE DEALING WITH AN IDENTICAL ISSUE I.E. PERIOD OF 4 YEARS FOR FILING OF THE APPLICATION U/S 254(2) AS WAS AVA ILABLE PRIOR TO THE AMENDMENT, HAS HELD AS UNDER: 16) IT WAS NEXT CONTENDED ON BEHALF OF THE PETITION ER THAT THE POWER OF THE TRIBUNAL UNDER SECTION 254(2) OF THE A CT IS ONLY TO RECTIFY AN ERROR APPARENT FROM THE RECORD. IT DOES NOT EMPOWER THE TRIBUNAL TO RECALL ITS EARLIER ORDER DATED 6 DECEMB ER 2007 FOR WHICH THE MISCELLANEOUS APPLICATION WAS FILED ON 6 AUGUST 2012. IT WAS SUBMITTED ON BEHALF OF THE PETITIONER THAT THE APPL ICATION UNDER SECTION 254(1) OF THE ACT WOULD BE THE ONLY PROVISI ON UNDER WHICH AN APPLICATION COULD BE MADE FOR RECALL OF AN ORDER , AS UNDER SECTION 254(2) OF THE ACT ONLY THE ORDER CAN BE RECTIFIED B UT CANNOT BE RECALLED. WE FIND THAT THERE IS AN ERROR APPARENT O N RECORD AND THE MISCELLANEOUS APPLICATION IS TO CORRECT THE ERROR A PPARENT FROM THE RECORD. THE CONSEQUENCE OF SUCH RECTIFICATION APPLI CATION BEING ALLOWED MAY LEAD TO A FRESH HEARING IN THE MATTER A FTER HAVING RECALLED THE ORIGINAL ORDER. HOWEVER, THE RECALL, I F 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 PROHIBIT TH E RECALL OF AN ORDER. IN FACT THE POWER/JURISDICTION OF THE TRIBUN AL TO RECALL AN ORDER ON RECTIFICATION APPLICATION MADE UNDER SECTI ON 254(2) OF THE ACT IS NO LONGER RESINTEGRA. THE ISSUE STANDS COVER ED BY THE DECISION OF THE APEX COURT IN ASSISTANT COMMISSIONER OF INCO ME TAX VS. SAURTASHTRA KUTCH STOCK EXCHANGE LIMITED (2008) 305 ITR 227 WHICH MA NO 55 OF 2018 GAYA TRI INFRA VENTURES LTD HYDERABAD. PAGE 3 OF 5 HELD THAT THOUGH THE TRIBUNAL HAS NO POWER TO REVIE W ITS OWN ORDER, YET IT HAS JURISDICTION TO RECTIFY ANY MISTAKE APPA RENT ON THE FACE OF THE RECORD AND AS A CONSEQUENCE THEREFORE, TRIBUNAL CAN EVEN RECALL ITS ORDER. IN THE ABOVE CASE BEFORE THE APEX COURT ON 27 OCTOBER 2000 THE TRIBUNAL DISMISSED THE APPEAL OF STOCK EXC HANGE HOLDING THAT IT WAS NOT ENTITLED TO EXEMPTION UNDER SECTION 11 READ WITH SECTION12 OF THE ACT. ON 13 NOVEMBER 2000 THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SECTION 254 (2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATE D 5 SEPTEMBER 2001 ALLOWED THE APPLICATION AND HELD THAT THERE WA S MISTAKE APPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION . ACCORDINGLY, THE TRIBUNAL RECALLED ITS ORDER DATED 27 OCTOBER 20 00 FOR THE PURPOSE OF ENTERTAINING THE APPEAL AFRESH. THE REVE NUE FILED A WRIT PETITION IN THE GUJARAT HIGH COURT CHALLENGING THE ORDER DATED 5 SEPTEMBER 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 ORIGINAL ORDER WHILE DISMISSING THE STOCK EXCHANGE (ASSESSEE 'S) APPEAL OVERLOOKED BINDING DECISIONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECTED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPREME COURT HELD THAT THE RECTIFICATION OF AN ORDER STANDS ON THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL AND UPHELD THE EXERCISE OF POWER UNDER SECTION 254(2) O F THE ACT BY THE TRIBUNAL IN RECALLING ITS EARLIER ORDER DATED 27 OC TOBER 2000. THUS RECALL OF AN ORDER IS NOT BARRED ON RECTIFICATION A PPLICATION BEING MADE BY ONE OF THE PARTIES. IN THESE CIRCUMSTANCES, THE APPLICATION WOULD BE AN APPLICATION FOR RECTIFICATION OF THE OR DER DATED 6 DECEMBER 2007 AND WOULD STAND GOVERNED BY SECTION 2 54(2) OF THE ACT. 17) IN THE FACTS OF THE PRESENT CASE THERE CAN BE N O DENIAL THAT THE ORDER DATED 6 DECEMBER 2007 SUFFERS FROM AN ERROR A PPARENT FROM THE RECORD. THE ERROR IS IN HAVING IGNORED THE MAND ATE OF RULE 24 OF THE TRIBUNAL RULES WHICH REQUIRED THE TRIBUNAL TO D ISPOSE OF THE MATTER ON MERITS AFTER HEARING THE RESPONDENTS. IN THESE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOU LD LIE UNDER SECTION 254(2) OF THE ACT. THE RECALL OF AN ORDER W OULD WELL BE A CONSEQUENCE OF RECTIFYING AN ORDER UNDER SECTION 25 4(2) OF THE ACT. IN THESE CIRCUMSTANCES, WE FIND NO REASON TO INTERF ERE WITH THE ORDER OF THE TRIBUNAL HOLDING THAT MISCELLANEOUS AP PLICATION 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 CLE AR THAT AN ORDER PASSED IN REACH OF RULE 24 OF THE TRIBUNAL RULES, I S AN IRREGULAR ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS ASSUME D THAT THE ORDER IN BREACH OF RULE 24 OF THE TRIBUNAL RULES IS AN VO ID ORDER, YET THE MA NO 55 OF 2018 GAYA TRI INFRA VENTURES LTD HYDERABAD. PAGE 4 OF 5 SAME WOULD CONTINUE TO BE BINDING TILL IT IS SET AS IDE BY A COMPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SAD IK V/S. SANJAY RAJ SUBBA REPORTED IN 2004(2) SCC 277 HAS OBSERVED AS U NDER: ' PATENT AND LATENT INVALIDITY IN A WELL KNOWN PASSAGE LORD RADCLIFFE SAID : ' AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE OF LEGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NECESSARY PROCEEDINGS ARE TAKE N AT LAW TO ESTABLISH THE CAUSE OF INVALIDITY AND TO GET IT QUA SHED OR OTHERWISE UPSET, IT WILL REMAIN AS EFFECTIVE FOR ITS OSTENSIB LE PURPOSE AS THE MOST IMPECCABLE OF ORDERS.' THIS MUST BE EQUALLY TR UE EVEN WHERE THE BRAND OF INVALIDITY IS PLAINLY VISIBLE, FOR THE RE ALSO THE ORDER CAN EFFECTIVELY BE RESISTED IN LAW ONLY BY OBTAINING A DECISION OF COURT.' FURTHER THE SUPREME COURT IN SNEH GUPTA V/S. DEV SA RUP (2009) 6 SCC 194 HAS OBSERVED 'WE ARE CONCERNED HEREIN WITH THE QUESTION OF LIMIT ATION. THE COMPROMISE DECREE, AS INDICATED HEREIN BEFORE, EVEN IF VOID WAS REQUIRED TO BE SET ASIDE. A CONSENT DECREE AS IS WE LL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SUCH A DECREE MUST BE SET ASIDE IF IT HAS BEEN PASSED IN VIOLATION OF LAW. FOR THE SAID PURPOSE, T HE PROVISIONS CONTAINED IN LIMITATION ACT 1963 WOULD BE APPLICABLE. IT IS N OT THE LAW THAT WHERE THE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE AT TRACTED AT ALL.' THEREFORE, IN THIS CASE ALSO THE PERIOD OF FOUR YEA RS FROM THE DATE OF ORDER SOUGHT TO BE RECTIFIED/RECALLED WILL APPLY AS PROVIDED IN SECTION 254(2) OF THE ACT. THIS IS SO EVEN IF IT IS ASSUMED THAT THE ORDER DATED 6 DECEMBER 2006 IS A VOID ORDER. 19) WE SHALL NOW ANSWER THE QUESTIONS ARISING IN TH IS CASE AS RAISED BY US IN PARAGRAPH 4 ABOVE AS UNDER: QUESTION(A): NO. THE TRIBUNAL HAS NO POWER IN TERMS OF RULE 24 OF THE TRIBUNAL RULES TO DISMISS AN APPEAL BEFORE IT F OR NON PROSECUTION. QUESTION(B): THE MISCELLANEOUS APPLICA TION FOR RECALL OF AN ORDER FALLS UNDER SECTION 254(2) OF THE ACT AND NOT UNDER SECTION 254(1) OF THE ACT. QUESTION(C): DOES NOT ARISE IN V IEW OF OUR RESPONSE TO QUERY (B) ABOVE. 20) IN VIEW OF THE REASONS GIVEN HEREIN ABOVE, WE F IND THE TRIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS APPLICA TION BY ITS ORDER DATED 10 APRIL 2013 AS BEING BEYOND THE PERIOD OF F OUR YEARS AS PROVIDED UNDER SECTION 254(2) OF THE ACT. 21) ACCORDINGLY, THE PETITION IS DISMISSED WITH NO ORDER AS TO COSTS. THIS DECISION WAS FOLLOWED BY THE COORDINATE BENC H OF THE TRIBUNAL AT JAIPUR IN THE CASE OF VINOD SINGH, JAIPUR VS. ITO, JAIPUR DATED 6.2.2018 IN MA NO.12/JP/2018 IN ITA MA NO 55 OF 2018 GAYA TRI INFRA VENTURES LTD HYDERABAD. PAGE 5 OF 5 NO.454/JP/2015, WHEREIN UNDER SIMILAR CIRCUMSTANCES AS IN THE CASE BEFORE US, THE M.A FILED BEYOND THE LIMITATIO N PERIOD OF SIX MONTHS WAS DISMISSED. IN VIEW OF THE SAME, WE ARE C ONSTRAINED TO DISMISS THE MISCELLANEOUS APPLICATION AS BARRED BY LIMITATION. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH JULY, 2018. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 18 TH JULY 2018. VINODAN/SPS COPY TO: 1 M/S. GAYATRI INFRA VENTURES LTD, 6-3-1090, B-1, T SR TOWERS, RAJ BHAVAN ROAD, SOMAJIGUDA, HYDERABAD 500082 2 ACIT, CIRCLE 2(3) HYDERABAD 3 CIT (A)-12, HYDERABAD 4 PR. CIT CENTRAL, HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER