CHANDRA MOHAN GARG, Hindaun City V. ITO, Sawai Madhopur

MA 55/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8055 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 07-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUMI PAL
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Right to appeal; Time period of passing order; Condonation of delay; Set aside
• Section: 254(2); 73; 72; 13; 12; 10; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 55/JP/2018 (ARISING OUT OF ITA NO. 1021/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 SH. CHANDRA MOHAN GARG C/O M/S GARG AGENCIES TODABHIM CUKE VS. THE ITO, WARD-03, SAWAI MADHOPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AIYPG76420Q VIHYKFKHZ@ A PPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUMI PAL (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 21/08/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 24/08/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINAT E BENCH DECISION IN ITA NO. 1021/JP/2016 DATED 20/06/2017. 2. AT THE OUTSET, IT IS NOTED THAT ORDER WAS PASSED BY THE CO-ORDINATE BENCH DECISION ON 20/06/2017 AND THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE ON 02.05.2018 WHICH IS B EYOND THE LIMITATION PERIOD AS PROVIDED U/S 254(2) OF THE ACT. M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 2 3. IN THIS REGARD, THE LD. AR SUBMITTED THAT THERE IS NO DISPUTE THAT THE ORDER HAS BEEN PRONOUNCED BY THE TRIBUNAL ON 20 .06.2017. HOWEVER, ORDER SO PASSED BY THE TRIBUNAL HAS NOT BEEN RECEIV ED BY THE ASSESSEE AND THEREFORE, MISCELLANEOUS APPLICATION COULD NOT BE FILED BY THE ASSESSEE WITHIN THE STIPULATED TIME PERIOD PROVIDED U/S 254(2) OF THE ACT. SUBSEQUENTLY, WHEN THE ASSESSEE CAME TO KNOW ABOUT THE PASSING OF THE ORDER, THE ASSESSEE HAS MOVED THE PRESENT MISCELLAN EOUS APPLICATION AND THE SAME MAY BE ADMITTED AND THE ORDER SO PASSED BY THE TRIBUNAL MAY BE RECALLED. 4. THE LD. DR HAS OBJECTED TO THE MISC. APPLICATION SO FILED BY THE ASSESSEE AND STATED THAT IN THE PRESENT CASE, THE O RDER HAS BEEN PASSED ON THE SAME DAY THE MATTER WAS HEARD BY THE TRIBUNA L AND SUBSEQUENTLY DISPATCHED BY THE REGISTRY AT THE GIVEN ADDRESS AND NOTHING HAS BEEN BROUGHT ON RECORD WHICH SUGGEST THAT THE ORDER SO D ISPATCHED BY THE REGISTRY HAS BEEN RETURNED BACK UNSERVED. FURTHER, REFERRING TO THE PROVISIONS OF SECTION 254(2) OF THE ACT, THE LD DR SUBMITTED THAT THERE IS NO PROVISION UNDER LAW WHEREIN THE DELAY IN FILING THE MISC. APPLICATION CAN BE CONDONED BY THE TRIBUNAL AND THE SAME IS THE CONSISTENT POSITION OF THIS BENCH AND ACCORDINGLY, THE MISC. APPLICATIO N SO FILED MAY BE DISMISSED BEING BARRED BY LIMITATION. 5. HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATE RIAL AVAILABLE ON RECORD. IN THIS REGARD, ON PERUSAL OF THE RECORDS, WE FIND THAT THE MATTER WAS FIXED FOR HEARING ON 20.06.2017 AND AFTER HEARI NG THE COUNSEL OF THE ASSESSEE AND THE LD DR, THE ORDER WAS PRONOUNCED BY THE CO-ORDINATE BENCH ON THE VERY SAME DATE AND WAS DISPATCHED BY T HE REGISTRY AT ADDRESS GIVEN BY THE ASSESSEE IN FORM NO. 36 ON 06. 07.2017 THROUGH M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 3 REGISTERED AD. THERE IS NOTHING AVAILABLE ON RECORD WHICH SUGGEST THAT THE ORDER SO DISPATCHED AT GIVEN ADDRESS HAS BEEN R ETURNED BACK UNSERVED BY THE POSTAL DEPARTMENT. THEREFORE, IT I S A CASE WHERE THE MATTER HAS BEEN PRONOUNCED IN THE OPEN COURT ON THE SAME DAY IT WAS HEARD AND THEREAFTER, THE ORDER WAS DISPATCHED AND DULY DELIVERED TO THE ASSESSEE. IT IS ALSO A FACT THAT THE ORDER HAS ALSO BEEN UPLOADED ON THE TRIBUNALS WEBSITE AS SOON AS THE SAME WAS PRONOUNC ED. THEREFORE, THE CONTENTION ADVANCED BY THE LD. AR THAT THE ORDER PA SSED BY THE COORDINATE BENCH HAS NOT BEEN RECEIVED BY THE ASSES SEE CANNOT BE ACCEPTED. THE PROVISIONS OF SECTION 254(2) HAS PRE SCRIBED THE LIMITATION PERIOD OF SIX MONTHS OF MOVING THE APPLICATION FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED, THEREFORE, THE PRESENT MISCELLANEOUS APPLICATION FILED BELATEDLY IS NOT MAINTAINABLE. TH E LIMITATION PERIOD IS PROVIDED IN THE ACT ITSELF AND THERE IS NO PROVISIO N FOR CONDONATION OF DELAY, IF ANY, IN FILING THE MISCELLANEOUS APPLICAT ION AND CONSEQUENTLY, THE TRIBUNAL HAS NO JURISDICTION/POWER TO CONDONE THE D ELAY IN FILING THE MISCELLANEOUS APPLICATION. THE TRIBUNAL HAS TAKEN A CONSISTENT VIEW ON THIS ISSUE AND IN CASE OF SHRI VINOD KUMAR SINGH VS. ITO IN M.A. NO. 12/JP/2018, THE COORDINATE BENCH OF THIS TRIBUNAL V IDE ORDER DATED 06.02.2018 HAS CONSIDERED AN IDENTICAL ISSUE OF DEL AY IN FILING THE MISCELLANEOUS APPLICATION AND MAINTAINABILITY OF SU CH APPLICATION IN PARA 4 AS UNDER :- 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD WE NOTE THAT THE CERTIFIED COPY OF THE IMPUGNED ORDER WAS ISSUED AND SEND TO THE ASSESSEE ON 21.04. 2017. WE FURTHER NOTE THAT THE ASSESSEE PROVIDED ADDRESS FOR COMMUNICATION IN THE FORM NO. 36 AS THE ADDRESS OF THE COUNSEL WH O WAS AUTHORIZED AND REPRESENTING THE ASSESSEE IN THE APP EAL. THE M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 4 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, ONCE THE ORDER WAS DULY SEND TO THE ASSESS EE AT THE GIVEN ADDRESS THEN, THIS PLEA OF THE ASSESSEE CANNO T BE ACCEPTED. UNDISPUTEDLY THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE BEYOND THE PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE IMPUGNED ORDER WAS PASSED. T HUS, IN THE ABSENCE OF ANY PROVISION U/S 254(2) OR ANY OTHER PR OVISIONS OF THE INCOME TAX ACT TO CONDONE THE DELAY IN FILING THE M ISCELLANEOUS APPLICATION WE DO NOT FIND ANY SUBSTANCE IN THE PLE A OF THE ASSESSEE TO CONDONE THE DELY. THE COORDINATE BENCH OF THIS TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE OF MAINT AINABILITY OF THE MISCELLANEOUS APPLICATION FILED BEYOND THE PERIOD O F LIMITATION IN CASE OF ITO VS. SHRI RAM RATAN MODI IN MA NO. 93/JP /2017 VIDE 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 PRESE NT MISCELLANEOUS PETITION WAS FILED BY THE REVENUE FOR RECALLING OF THE ORDER DATED 18.12.2015 AND THEREFORE, AS PER UN- AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT, TH E LIMITATION PERIOD PROVIDED FOR RECTIFICATION OF THE MISTAKE WAS 4 YEARS FROM THE DATE OF ORDER. HOWEVER, THE PROVIS IONS OF SECTION 254(2) HAS BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01.06.2016 PROVIDING THE LIMITATION PERIOD F OR RECTIFICATION OF MISTAKE AS 6 MONTHS FROM THE END O F THE MONTH IN WHICH THE ORDER IS PASSED. FOR READY REFER ENCE, 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 APPA RENT M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 5 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 ASSESSEE OR THE 74 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY O F BEING HEARD : 5 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DA Y OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIF TY 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 T HE ASSESSEE, PASS AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APPEAL FILED UNDER SUB-SECTION (1) OF SECTION 253 , FOR A PERIOD NOT EXCEEDING ONE HUNDRED AND EIGHTY DAYS FR OM THE DATE OF SUCH ORDER AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE SAID PERIOD OF STAY SPECIF IED IN THAT ORDER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECI FIED IN THE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN AP PLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SA TISFIED THAT THE DELAY IN DISPOSING OF THE APPEAL IS NOT AT TRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINK S FIT; SO, HOWEVER, THAT THE AGGREGATE OF THE PERIOD ORIGINALL Y ALLOWED M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 6 AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SH ALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DA YS AND THE APPELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE PERIOD OR PERIODS OF STAY SO EXTENDED OR ALLOWED: 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO O R THE PERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SEC OND 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 PERIODS, EVEN IF THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO T HE 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 WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTI FIED HAS BEEN REDUCED FROM 4 YEARS 6 MONTHS. THERE IS NO QUA RREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CAN NOT BE GIVEN EFFECT RETROSPECTIVELY SO AS TO TAKE WAY OF R IGHT OF THE PARTIES TO FILE THE APPLICATION OF RECTIFICATION. T HE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERA TIVE BANK LTD. VS. UNION OF INDIA(SUPRA) HAS OBSERVED IN PARA S 9 AND 10 AS UNDER:- 09- THE AMENDMENT HAS BEEN MADE EFFECTIVE VIRTUAL LY IN CASE OF ASSESSEE WITH RETROSPECTIVE EFFECT THOUGH T HE AMENDMENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RESPECTIVE EFFECT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPECTIVE EFFECT IN CASE OF T HE 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 T HE SOME HAS NOT BEEN DONE TILL THE AMENDMENT CAME INTO FORC E EXTINGUISHING THE RIGHT TO FILE AN APPEAL. M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 7 THEREFORE, THE HONBLE HIGH COURT HAS OBSERVED THAT THE AMENDMENT IN THE SAID PROVISIONS IS NOT APPLICABLE WITH RETROSPECTIVE EFFECT OTHERWISE IT WOULD EXTINGUISH THE RIGHT OF THE APPLICANT WITH RETROSPECTIVE EFFECT. HENCE, TO THE EXTENT OF THE APPLICABILITY OF THE AMENDMENT PROSPECTIVELY WE DO AGREE WITH THE LD. DR, HOWEVER SINCE THE AMENDMENT CAME INTO FORCED W.E.F. 01.06.2016 THEN AFTER THE SUBSTI TUTION OF THE PROVISION W.E.F. 01.06.2016 THE LIMITATION PERI OD 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 PAS SED PRIOR TO THE AMENDMENT, THEREFORE, THE SAID PERIOD OF LIM ITATION 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 EXPIRED ON 30.11.2016. WE MAY CLARIFY THAT IN CASE THE IMPUGNED ORDER IS PRIOR TO THE AMENDMENT W.E.F. 01. 06.2016 THEN THE LIMITATION PERIOD OF 6 MONTHS WOULD RECKO N FROM 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NO T CURTAIL BY THE SUBSEQUENT AMENDMENT. WE FURTHER, NOTE THAT THE BANGALORE BENCHES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 166 ITD 172 HAD THE OCCASION TO CON SIDER AN IDENTICAL ISSUE AND ONE OF US THE JUDICIAL MEMBER I S PARTY TO THE SAID ORDER AND HELD IN PARAS 5 TO 8 AS UNDER:- 5. WE HAVE CONSIDERED THE ABOVE SUBMISSIONS AND CAREF ULLY PERUSED THE RELEVANT RECORD. THE ASSESSEE HAS FILED THIS MISCELLANEOUS PETITION ON 10.03.2017 FOR RECALLING OF ORDER OF THE TRIBUNAL DATED 04.01.2016. THE PROVISION OF REC TIFICATION OF MISTAKE APPARENT FROM RECORD IS PROVIDED UNDER S ECTION 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. M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 8 (1A) 48[***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER P ASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMEND MENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSE E OR THE [ASSESSING] OFFICER: PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO T HE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD: [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTOBER , 1998, SHALL 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. 01.06.201 6, THE LIMITATION PERIOD FOR RECTIFICATION OF MISTAKE APPARENT FROM R ECORD IS PROVIDED ONLY FOR 6 MONTHS FROM THE END OF THE MONTH IN WHIC H THE ORDER WAS PASSED. IN THE CASE IN HAND, THE IMPUGNED ORDER WAS PASSED BY THE TRIBUNAL ON 04.01.2016 AND AFTER THE AMENDME NT IN SECTION 254(4) W.E.F. 01.06.2016, THESE MISCELLANEOUS PETIT ION WAS REQUIRED TO BE FILED BEFORE 31.07.2016. PRIOR TO TH E AMENDMENT, THE LIMITATION WAS PROVIDED AS 4 YEARS FOR RECTIFIC ATION OF MISTAKE APPARENT FROM RECORD AND THEREFORE THERE WAS NO PRO VISION IN THE INCOME-TAX ACT FOR CONDONATION OF ANY DELAY OF ANY PETITION FOR RECTIFICATION OF MISTAKE FILED AFTER THE SAID PERIO D OF 4 YEARS. EVEN OTHERWISE, THE LIMITATION OF 4 YEARS WAS 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 PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND THEREFORE THERE WAS NO PROVISION EVEN IN THE LIMITA TION ACT FOR M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 9 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 PRINCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPECIAL STATUTE, THEN THE GENERAL STATUTE IS NOT AP PLICABLE TO THE EXTENT OF THE PROVISION PROVIDED IN THE SPECIAL STA TUTE. WE FIND THAT PRIOR TO THE AMENDMENT THE LIMITATION FOR RECTIFICA TION 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 T HE EXPIRY OF SUCH 4 YEARS OF LIMITATION. HOWEVER, IN THE AMENDED PROVISIONS OF THE ACT UNDER SECTION 254(2), THE LIMITATION FOR RE CTIFICATION OF MISTAKE APPARENT FROM THE RECORD HAS BEEN DRASTICAL LY 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 VALUABLE RIGHT OF PURSUING THE APPEAL BEFORE THE TRIBUNAL. BUT IN THE ABSENCE OF ANY PROVISION GIVING POWER OR JURISDICTION TO THIS TRIBUNAL TO CONDONE THE DELAY IN FILING THE PETITION FOR RECTIF ICATION OF THE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCEED STRICTLY AS PER THE PROVISIONS AS PROVID ED 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 N OT DECIDED THE APPEALS OF THE ASSESSEE ON MERIT BUT DISMISSED THE SAME IN LIMINE FOR WANT OF PROSECUTION. HOWEVER, THE QUESTION OF R ECTIFICATION OF MISTAKE CANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS FOUND TO BE MAINT AINABLE. THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS BEY OND THE PERIOD OF 6 MONTHS FROM 04.01.2016 AND THEREFORE THE 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 OMISS ION IN THE PROVISION OF ACT WHICH CANNOT BE SUPPLIED BY US WHE N THERE IS NO AMBIGUITY IN THE PROVISIONS OF SECTION 254(2) OF TH E ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PET ROLEUM CORPN. M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 10 LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN PARAS 1 6 TO 18 AS UNDER: '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETI TIONER THAT THE POWER OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT IS ONL Y TO RECTIFY AN ERROR APPARENT FROM THE RECORD. IT DOES NOT EMPOWER THE T RIBUNAL TO RECALL ITS EARLIER ORDER DATED DECEMBER 6, 2007, FOR WHICH THE MISCELLANEOUS APPLICATION WAS FIL ED ON AUGUST 6, 2012. IT WAS SUBMITTED ON BEHALF OF THE PETITIONER THAT THE APPLICATION UNDER SECTIO N 254(1) OF THE ACT WOULD BE THE ONLY PROVISION UNDER WHICH AN APPLICAT ION COULD BE MADE FOR RECALL OF AN ORDER, AS UNDER SECTION 254(2 ) OF THE ACT ONLY THE ORDER CAN BE RECTIFIED BUT CANNOT BE RECALLED. WE F IND THAT THERE IS AN ERROR APPARENT ON RECORD AND THE MISCELLANEOU S APPLICATION IS TO CORRECT THE ERROR APPARENT FROM THE RECORD. THE CON SEQUENCE OF SUCH RECTIFICATION APPLICATION BEING ALLOWED MAY LEAD T O A FRESH HEARING IN THE MATTER AFTER HAVING RECALLED THE ORIGINAL ORDER . HOWEVER, THE RECALL, IF ANY, IS ONLY AS A CONSEQUENCE OF RECTIFY ING THE ORIGINAL ORDER. IT IS PERTINENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT PROHIBIT THE RECALL OF AN ORDE R. IN FACT THE POWER/JURISDICTION OF THE TRIBUNAL T O RECALL AN ORDER ON RECTIFICATION APPLICATION MADE U NDER SECTION 254(2) OF THE ACT IS NO LONGER RES INTEGRA . THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX COURT IN ASSTT. CIT V. SAURASH TRA KUTCH ST OCK 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 RECORD AND AS A CONSEQUENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECAL L ITS ORDER. IN THE ABOVE CASE, BEFORE THE APEX COURT ON OCTOBER 27, 20 00, THE TRIBUNAL DISMISSED THE APPEAL OF STOCK EXCHANGE HOLDING THAT IT WAS NOT ENTITLED TO EXEMPTION UNDER SECTION 11 READ WITH SECTION 12 OF THE ACT. ON NOVEMBER 13, 2000, THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SECTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATED SEPTEMBER 5, 2001, ALLO WED THE APPLICATION AND HELD THAT THERE WAS A MISTAKE APPARENT ON THE RECOR D WHICH REQUIRED RECTIFICATION. ACCORDINGLY, THE TRIB UNAL RECALLED ITS ORDER DATED OCTOBER 27, 2000, FOR THE PURPOSE OF EN TERTAINING THE APPEAL AFRESH. THE REVENUE FILED A WRIT PETITION IN THE GUJARAT HIG H COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001 . THE ABOVE M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 11 CHALLENGE BY THE REVENUE WAS TURNED DOWN BY THE GUJ ARAT HIGH COURT. THE REVENUE CARRIED THE MATTER IN APPEAL TO THE APEX COURT WHICH ALSO DISMISSED THE APPEAL OF THE REVENUE. THE APEX COURT O BSERVED THAT THE TRIBUNAL IN ITS ORIGINAL ORDER WHI LE DISMISSING THE STOCK EXCHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE B INDING DECISIONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECTED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPRE ME COURT HELD THAT THE RECTIFICATION OF AN ORDER STANDS ON THE FU NDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL AND UPHELD THE EXERCISE O F POWER UNDER SECTION 254(2) OF THE ACT BY THE TRIBUNAL IN RECALL ING ITS EARLIER ORDER DATED OCTOBER 27, 2000. THUS, REC ALL OF AN ORDER IS NOT BARRED ON RECTIFICATION APPLICATION BEING MADE BY ONE OF THE PARTIES. IN THESE CIRCUMSTANCES, THE APPLICATION WOULD BE AN APPLICAT ION FOR RECTIFICATION OF THE ORDER DATED DECEMBER 6, 2007, AND WOULD STAND GOVERNED BY SECTION 254(2) OF THE ACT. 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 APPAR ENT FROM 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 THE MERITS AFTER HEARING THE RESPONDENTS. IN THE SE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOULD BE UNDER SEC TION 254(2) OF THE ACT. THE RECALL OF AN ORDER WOULD WELL BE A CONSEQU ENCE OF RECTIFYING AN ORDER UNDE R SECTION 254(2) OF THE ACT. IN THESE CIRCUMSTANCES , WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE T RIBUNAL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APPELLAN T IS BARRED BY LIMITATION UNDER SECTION 254(2) OF THE ACT AS IT WA S FILED BEY OND A PERIOD OF FOUR YEARS FROM THE ORDER SOUGHT TO BE RE CTIFIED. 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 IRREGULAR ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS A SSUMED THAT THE ORDER IN BREACH OF RULE 24 OF THE TRIBUNAL RULES IS AN VOID ORDER, YET THE SAME WOULD CONTINUE TO BE BINDING TILL IT IS SET ASIDE B Y A COMPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SAD IK V. SANJAY RAJ SUBBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDER: 'PATENT AND M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 12 LATENT INVALIDITY IN A WELL KNOWN PASSAGE LORD RADC LIFFE SAID: 'AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NE CESSARY PROCEEDINGS ARE TAKEN AT LAW TO ESTABLISH T HE CAUSE OF INVALIDITY AND TO GET IT QUASHED OR OTHERW ISE UPSET, IT WILL REMAIN AS EFFECTIVE FOR ITS OSTENSIBLE PURPOSE AS T HE MOST IMPECCABLE OF ORDERS.' THIS MUST BE EQUALLY TRUE EVEN WHERE TH E 'BRAND OF INVALIDITY' IS PLAINLY VISIBLE: FOR THERE ALSO THE ORDER CAN EFFECTIVELY BE RESISTED IN LAW ONLY BY OBTAINING 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 TH E QUESTION OF LIMITATION. 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 S ET ASIDE IF IT HAS BEEN PASSED IN VIOLATION OF LAW. FOR THE SAID PURPOSE, THE PROVISIONS CONTAINED IN THE LIMITATION ACT, 1963, WOULD BE APP LICABLE. IT IS NOT THE LAW THAT WHERE THE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE ATTRACTED AT ALL.' THEREFORE, IN THIS CASE ALSO THE PERIOD OF FOUR YE ARS FROM THE DATE OF ORDER SOUGHT TO BE R ECTIFIED/RECALLED WILL APPLY AS PROVIDED IN SECTION 254(2) OF THE ACT. THIS IS SO E VEN IF IT IS ASSUMED THAT THE ORDER DATED DECEMBER 6, 2006, IS A VOID OR DER. 19 WE SHALL NOW ANSWER THE QUESTIONS ARISING IN THI S C ASE AS RAISED BY US IN 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 F OR NON-PROSECUTION. QUESTION (B) : THE MISCELLANEOUS APPLICATION FOR RE CALL O F 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 VIEW OF OUR RESPON SE TO QUERY (B) ABOVE. 20. IN VIEW OF THE REASONS GIVEN HEREINABOVE, WE FIND T HE TRIBUNAL M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 13 WAS CORRECT IN DIS MISSING THE MISCELLANEOUS APPLICATION BY ITS ORDER DATED APRIL 10, 2013, AS BEING BEYOND THE PERIOD OF FOUR YEARS AS PROVIDED 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 CA SE OF BHARAT PETROLEUM CORPN. LTD. (SUPRA), WE HOLD THAT THE MIS CELLANEOUS PETITION FILED BY THE ASSESSEE ARE BEYOND THE PERIO D OF LIMITATION AS PROVIDED UNDER SECTION 254(2) AND ARE NOT MAINTAINA BLE. ACCORDINGLY THE SAME IS DISMISSED BEING BARRED BY L IMITATION. ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMS TANCES AS DISCUSSED IN FOREGOING PARAS AS WELL AS THE DECISIO N OF THE BANGALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCE LLANEOUS PETITION FILED BY THE REVENUE ON 22.05.2017 IS BEYO ND THE PERIOD OF LIMITATION EXPIRED ON 30.11.2016 AND ACCORDING T HE SAME IS NOT MAINTAINABLE. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE WHEN THE MISCELLANEOUS APPLICATION IS BARRED BY LIM ITATION AND FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL IN CAS E OF ITO VS. SHRI RAM RATAN MODI (SUPRA) WE DISMISSED THE MISCELLANEO US APPLICATION AS NOT MAINTAINABLE BEING BARRED BY LIM ITATION. ACCORDINGLY, WHEN THERE IS NO PROVISION FOR CONDONA TION OF DELAY FOR FILING OF THE MISCELLANEOUS APPLICATION, THEN THE MISCELLA NEOUS APPLICATION FILED BELATEDLY IS NOT MAINTAINABLE BEING BARRED BY LIMIT ATION PROVIDED UNDER SECTION 254(2) OF THE ACT. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE ASSESSEE IS DISMISSED. M.A. NO. 55/JP/2018 SH. CHANDRA MOHAN GARG VS. ITO, SAWAIMADHOPUR 14 ORDER PRONOUNCED IN THE OPEN COURT ON 24/08/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 24/08/2020. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. CHANDRA MOHAN GARG, TODABHIM 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-03, SAWAIMADHOPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 55/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR