Appeal Details
Counselvise Citation
[2019] 112 COUNSELVISE.COM (IT) 1330 (ITAT-JAIPUR)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
5 month(s) 8 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
09-12-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
SMC
Assessment Year
2007-2008
Appeal Filed On
01-07-2019
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 JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KN O] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM M.A. NO. 56/JP/2019 (ARISING OUT OF ITA NO. 304/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2007-08 SHRI DEEPAK BANSAL KISHANGARH. CUKE VS. THE INCOME TAX OFFICER, WARD-2 JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AIMPB 1646 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : SHRI K.C. GUPTA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 06/12/2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 09/12/2019. VKNS'K@ ORDER PER VIKRAM SINGH YADAV, AM: THE PRESENT MISCELLANEOUS PETITION HAS BEEN FILED B Y THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 304/JP/2017 DATED 02.06.2017. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPITE OF DATE OF THE HEARING DULY NOTED BY SHRI PARMANAND SAINI WHO APPEARED ON BEHALF OF THE ASSESSEE ON LAST DATE OF HEARING I.E. ON 18.10.2019. IT WAS ACCORDINGLY DECIDED TO HEAR MISC. APPLICATION EX-PARTE QUA THE ASSESSEE BASED O N MATERIAL AVAILABLE ON RECORD. 3. AT THE OUTSET, IT IS NOTED THAT THE APPLICATION FILED BY THE ASSESSEE U/S 254(2) OF THE ACT IS DELAYED FILED BY 546 DAYS. THE ORDER WAS PASSED BY THE 2 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 2 COORDINATE BENCH ON 02.06.2017 AND THE MISC. PETITI ON U/S 254(2) OF THE ACT HAS BEEN FILED BY THE ASSESSEE ONLY ON 01.07.2019. IN HIS MISC. PETITION, THE ASSESSEE HAS TAKEN THE GROUND THAT HE WAS NEVER SER VED ANY NOTICE FOR HEARING OF THE APPLICATION BY THE TRIBUNAL AND FIRS T TIME HE CAME TO KNOW THROUGH INCOME TAX OFFICE, KISHANGARH THAT HIS APPE AL ORDER HAS BEEN DECIDED EX-PARTE. 4. FROM THE RECORDS, IT IS NOTED THAT THE NOTICE FO R HEARING WAS SENT BY THE REGISTRY ON 21.04.2017 FIXING THE DATE OF HEARING O N 02.06.2017 AT THE ADDRESS GIVEN BY THE ASSESSEE IN FORM 36 WHICH IS C /O SHRI D.K. MATHUR, STATION ROAD MAKRANA, DISTT. NAGAUR. FURTHER THE OR DER PASSED BY THE COORDINATE BENCH DATED 02.06.2017 WAS SENT THROUGH REGISTERED AD AT THE SAME ADDRESS ON 04.07.2017. THERE IS NOTHING ON RE CORD TO SUGGEST THAT THE SAID ORDER WAS RECEIVED BACK UNSERVED, THEREFORE, I T CANNOT BE ACCEPTED THAT THE ASSESSEE HAS NOT RECEIVED THE ORDER OF THE TRIB UNAL. SINCE THE PROVISION OF SECTION 254(2) OF THE ACT HAS PRESCRIBED THE LIMITA TION FOR RECTIFICATION OF MISTAKE WITHIN A PERIOD OF 6 (SIX) MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED, THEREFORE, THE PRESENT MISCELL ANEOUS APPLICATION FILED BELATEDLY WITH A DELAY OF 546 DAYS IS NOT MAINTAINA BLE. THE LIMITATION FOR RECTIFICATION OF MISTAKE IS PROVIDED IN THE IT ACT ITSELF AND THERE IS NO PROVISION FOR CONDONATION OF DELAY, IF ANY, IN FILING THE MIS CELLANEOUS APPLICATION. THEREFORE, THIS TRIBUNAL HAS NO JURISDICTION/POWER TO CONDONE THE DELAY IN FILING THE MISCELLANEOUS APPLICATION AND SAME BEING A CONSISTENT POSITION OF VARIOUS BENCHES OF THIS TRIBUNAL. REFERENCE CAN DR AWN TO THE DECISION OF COORDINATE BENCH IN CASE OF SHRI VINOD KUMAR SINGH VS. ITO (IN M.A. NO. 12/JP/2018), WHERE THE COORDINATE BENCH OF THIS TRIBUNAL VIDE O RDER 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 :- 3 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 3 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 COMMUNI CATION IN THE FORM NO. 36 AS THE ADDRESS OF THE COUNSEL WHO WAS AUTHOR IZED AND REPRESENTING THE ASSESSEE IN THE APPEAL. THE ASSESS EE NOW COME UP WITH THE PLEA THAT THE ASSESSEE HAS TAKEN THE CERTI FIED COPY ONLY ON 08.09.2017 WHICH IS ONLY ANOTHER COPY OF THE IMPUGN ED ORDER PROVIDED TO THE ASSESSEE ON HIS REQUEST. HOWEVER, ONCE THE O RDER WAS DULY SEND TO THE ASSESSEE AT THE GIVEN ADDRESS THEN, THIS PLE A OF THE ASSESSEE CANNOT BE ACCEPTED. UNDISPUTEDLY THE PRESENT MISCEL LANEOUS 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 PA SSED. THUS, IN THE ABSENCE OF ANY PROVISION U/S 254(2) OR ANY OTHE R PROVISIONS 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 TRIB UNAL HAS CONSIDERED AN IDENTICAL ISSUE OF MAINTAINABILITY OF THE MISCEL LANEOUS APPLICATION FILED BEYOND THE PERIOD OF LIMITATION IN CASE OF IT O VS. SHRI RAM RATAN MODI IN MA NO. 93/JP/2017 VIDE ORDER DATED 27.12.2 017 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, THE LIMITA TION PERIOD PROVIDED FOR RECTIFICATION OF THE MISTAKE WAS 4 YEA RS FROM THE DATE OF ORDER. HOWEVER, THE PROVISIONS OF SECTION 2 54(2) HAS 4 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 4 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 PASSED. FOR READY REFERENCE, WE QUOTE SECTION 254(2) AS UND ER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 72 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PA SSED], 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 ASSESSEE OR THE 74 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G 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 : 5 [ 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.] 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 WH ICH 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, PASS AN ORDER OF STAY IN ANY PROCEEDINGS RELATING TO AN APP EAL FILED UNDER 5 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 5 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 WITH IN THE SAID PERIOD OF STAY 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 OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DEL AY 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, TH AT THE AGGREGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL SHAL L 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 OR THE P ERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVIS O, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SI XTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXP IRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING O F THE APPEAL IS NOT ATTRIBUTABLE 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 WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED H AS BEEN 6 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 6 REDUCED FROM 4 YEARS 6 MONTHS. THERE IS NO QUARREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CANNOT BE GIV EN EFFECT RETROSPECTIVELY SO AS TO TAKE WAY OF RIGHT OF THE P ARTIES TO FILE THE APPLICATION OF RECTIFICATION. THE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERATIVE BANK LTD. VS. UNION OF INDIA(SUPRA) HAS OBSERVED IN PARAS 9 AND 10 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 EFFE CT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPE CTIVE EFFECT 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 EXTINGUISHI NG THE RIGHT TO FILE AN APPEAL. 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 F ORCED W.E.F. 01.06.2016 THEN AFTER THE SUBSTITUTION OF THE PROVI SION 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 TH E MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND SIN CE THE ORDER WAS PASSED PRIOR TO THE AMENDMENT, THEREFORE, THE S AID PERIOD OF 7 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 7 LIMITATION WILL BE AVAILABLE TO THE ASSESSEE FROM T HE DATE OF AMENDMENT I.E. ON 01.06.2016 FOR A PERIOD 6 MONTHS. THUS, THE PRESENT MISCELLANEOUS PETITION FILED BY THE REVENUE ON 22.05.2017 IS BEYOND THE PERIOD OF LIMITATION WHICH HAS EXPIRED ON 30.11.2016. WE MAY CLARIFY THAT IN CASE THE IMPU GNED ORDER IS PRIOR TO THE AMENDMENT W.E.F. 01.06.2016 THEN THE L IMITATION PERIOD OF 6 MONTHS WOULD RECKON FROM 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NOT CURTAIL BY THE SUBSEQ UENT AMENDMENT. WE FURTHER, NOTE THAT THE BANGALORE BENC HES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 16 6 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:- 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 RECTIFI CATION OF MISTAKE APPARENT FROM RECORD IS PROVIDED UNDER SECT ION 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 AN Y MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- 8 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 8 SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE M ISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSES SING] 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-S ECTION 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: [ 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.]' 6. THE TIME PERIOD WITHIN WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED HAS BEEN REDUCED FROM 4 YEARS TO 6 MON THS 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, T HE LIMITATION PERIOD FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD IS PR OVIDED 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 MISCELLANEOUS PETITION WAS REQUIR ED TO BE FILED BEFORE 31.07.2016. PRIOR TO THE AMENDMENT, THE LIMITATION WAS PROVIDED AS 4 YEARS FOR RECTIFICATION OF MISTAKE APPARENT FROM RE CORD AND THEREFORE THERE WAS NO PROVISION IN THE INCOME-TAX ACT FOR CO NDONATION OF ANY DELAY OF ANY PETITION FOR RECTIFICATION OF MISTAKE FILED AFTER THE SAID PERIOD OF 4 YEARS. EVEN OTHERWISE, THE LIMITATION O F 4 YEARS WAS MORE THAN THE LIMITATION FOR FILING OF THE SUIT AND AS P ER THE GENERAL STATUTE I.E., THE LIMITATION ACT WHERE THE LIMITATION FOR I NSTITUTION OF SUIT IS PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND 9 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 9 THEREFORE THERE WAS NO PROVISION EVEN IN THE LIMITA TION ACT FOR 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. T HIS 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 PROVISION PROVIDED IN THE SPECIAL STATUTE. WE FIND THAT PRIOR TO THE A MENDMENT THE LIMITATION 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 TRIB UNAL TO CONDONE THE DELAY AFTER THE EXPIRY OF SUCH 4 YEARS OF LIMITATIO N. HOWEVER, IN THE AMENDED PROVISIONS OF THE ACT UNDER SECTION 254(2), THE LIMITATION FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD H AS BEEN DRASTICALLY REDUCED FROM 4 YEARS TO 6 MONTHS AND IN CASE OF A D ELAY 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 TRIB UNAL TO CONDONE THE DELAY IN FILING THE PETITION FOR RECTIFICATION OF T HE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCE ED STRICTLY AS PER THE PROVISIONS 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 DECIDED THE APPEALS OF THE ASSESSEE ON MERIT BUT DISMISSED THE SAME IN LIMINE FOR WANT OF PROSECUTION. HOWEVER, THE QUESTION OF RECTIFICATION OF MISTAKE CANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLANEOUS PETI TION FILED BY THE 10 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 10 ASSESSEE IS FOUND TO BE MAINTAINABLE. THE MISCELLAN EOUS PETITION FILED BY THE ASSESSEE IS BEYOND THE PERIOD OF 6 MONTHS FR OM 04.01.2016 AND THEREFORE THE SAME IS BARRED BY LIMITATION. IN THE ABSENCE OF ANY PROVISION TO CONDONE THE DELAY UNDER THE INCOME-TAX ACT, IT MAY BE A CASE OF OMISSION IN THE PROVISION OF ACT WHICH CANN OT BE SUPPLIED BY US WHEN THERE IS NO AMBIGUITY IN THE PROVISIONS OF SEC TION 254(2) OF THE ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF B HARAT PETROLEUM CORPN. LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN P ARAS 16 TO 18 AS UNDER: '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETITIONER T HAT 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 T RIBUNAL TO RECALL ITS EARLIER ORDER DATED DECEMBER 6, 2007, FOR WHICH THE MISCELLANEOUS APPLICATION WAS FILED ON AUGUST 6, 2012. IT WAS SUB MITTED ON BEHALF OF THE PETITIONER THAT THE APPLICATION UNDER SECTION 2 54(1) OF THE ACT WOULD BE THE ONLY PROVISION UNDER WHICH AN APPLICATION CO ULD BE MADE FO R RECALL OF AN ORDER, AS UNDER SECTION 254(2) OF THE ACT ONLY THE ORDER CAN BE RECTIFIED BUT CANNOT BE RECALLED. WE FIND THAT T HERE IS AN ERROR APPARENT ON RECORD AND THE MISCELLANEOUS APPLICATIO N IS TO CORRECT THE ERROR APPARENT FROM THE RECORD. THE CONSE QUENCE OF SUCH RECTIFICATION APPLICATION BEING ALLOWED MAY LEAD TO A FRESH HEARI NG IN THE MATTER AFTER HAVING RECALLED THE ORIGINAL ORDER. HOWEVER, THE RECALL, IF ANY, IS ONLY AS A CONSEQUENCE OF RECTIFYING THE ORIGINAL OR DER. IT IS PERTINENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT PROHIBIT THE REC ALL OF AN ORDER. IN FACT THE POWER/JURISDICTION OF THE TRIBUN AL 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 TH E DECISION OF THE APEX 11 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 11 COURT IN ASSTT. CIT V. SAURASHTRA KUTCH STOCK EXCHA NGE LTD. [2008] 305 ITR 227 WHICH HELD THAT THOUGH THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN O RDER, YET IT HAS JURISDICTION TO RECTIFY ANY MISTAK E APPARENT ON THE FACE OF THE RECORD AND AS A CONSEQUENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECALL ITS ORDER. IN THE ABOVE CASE, BEFORE TH E APEX COURT ON OCTOBER 27, 2000, 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 ST OCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SECTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATED SEPTEMBER 5, 2001, ALLOWED THE APPLICATION AND HELD THAT THERE WAS A MISTAKE A PPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION. ACCORDINGLY, T HE TRIBUNAL RECALLED ITS ORDER DATED OCTOBER 27, 2000, FOR THE PURPOSE OF EN TERTAINING THE AP PEAL AFRESH. THE REVENUE FILED A WRIT PETITION IN T HE GUJARAT HIGH COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001 . THE ABOVE CHALLENGE BY THE REVENUE WAS TURNED DOWN BY THE GUJ ARAT HIGH COURT. THE REVENUE CARRIED THE MATTER IN APPEAL TO THE APE X COURT WHICH ALSO DISMISSED THE APPEAL OF THE REVENUE. THE APEX COURT OBSERVED THAT THE TRIBUNAL IN ITS ORIGINAL ORDER WHILE DISMISSING THE STOCK EXCHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE BINDING DECISION S OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS COR RECTED 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 JUST ICE 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 OCTOBER 27, 20 00. 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 ORDER DAT ED DECEMBER 6, 2007, 12 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 12 AND WOULD STAND GOVERNED BY SECTION 254(2) OF THE A CT. 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 DISPO SE OF THE MATTER ON THE MERITS AFTER HEARING THE RESPONDENTS. IN THESE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOULD BE UNDER SECTIO N 254(2) OF THE ACT. THE RECALL OF AN ORDER WOULD WELL BE A CONSEQUENCE OF RECTIFYING AN ORDER UNDER SECTION 254(2) OF THE ACT. IN THESE CIR CUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE TRIBUN AL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APPELLANT IS BARRED BY LIMITATION UNDER SECTION 254(2) OF THE ACT AS IT WAS FILED BEY OND 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 IRREGULAR ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS ASSUMED 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 BY A CO MPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SADIK V. SANJAY RAJ SU BBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDER: 'PATENT AND LAT ENT INVALIDITY IN A WELL KNOWN PASSAGE LORD RADCLIFFE SAID: 'AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQ UENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE N ECESSARY PROCEEDINGS ARE TAKEN AT LAW TO ESTABLISH THE CAUSE OF INVALIDI TY AND TO GET IT QUASHED OR OTHERWISE UPSET, IT WILL REMAIN AS EFFEC TIVE FOR ITS OSTENSIBLE PURPOSE AS THE MOST IMPECCAB LE OF ORDERS.' THIS MUST BE EQUALLY TRUE 13 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 13 EVEN WHERE THE 'BRAND OF INVALIDITY' IS PLAINLY VIS IBLE: 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 GUPT A V. DEVI SARUP [2009] 16 SCC 194 HAS OBSERVED. 'WE ARE CONCERNED H EREIN WITH THE QUESTION OF LIMITATION. THE COMPROMISE DECREE, AS INDICATED HEREIN BEFORE, EVEN IF VOID WAS REQUIRED TO BE SET ASIDE. A CONSENT DECREE AS IS WELL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SU CH A DECREE MUST BE SET ASIDE IF IT HAS BEEN PASSED IN VIOLATION OF LAW . FOR THE SAID PURPOSE, THE PROVISIONS CONTAINED IN THE LIMITATION ACT, 196 3, WOULD BE APPLICABLE. IT IS NOT THE LAW THAT WHERE THE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE ATTR ACTED AT ALL.' THEREFORE, IN THIS 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 DE CEMBER 6, 2006, IS A VOID ORDER. 19 WE SHALL NOW ANSWER THE QUESTIONS ARISING IN THI S CASE 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 FOR N ON-PROSECUTION. QUESTION (B) : THE MISCELLANEOUS APPLICATION FOR RE CALL 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 VIEW OF OUR RESPON SE TO QUERY (B) ABOVE. 14 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 14 20. IN VIEW OF THE REASONS GIVEN HEREINABOVE, WE FIND T HE TRIBUNAL WAS CORRECT IN DISMISSING 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 PERIOD OF LIMI TATION AS PROVIDED UNDER SECTION 254(2) AND ARE NOT MAINTAINABLE. ACCO RDINGLY THE SAME IS DISMISSED BEING 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 B ANGALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCELLANEOUS PETITION FIL ED BY 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 LIMITATI ON AND FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL IN CASE OF ITO VS. S HRI RAM RATAN MODI (SUPRA) WE DISMISSED THE MISCELLANEOUS APPLICATION AS NOT MAINTAINABLE BEING BARRED BY LIMITATION. ACCORDINGLY, WHEN THERE IS NO PROVISION OF CONDONAT ION OF DELAY FOR FILING OF THE MISCELLANEOUS APPLICATION, THEN THE MISCELLANEO US APPLICATION FILED BELATEDLY IS NOT MAINTAINABLE BEING BARRED BY LIMIT ATION PROVIDED UNDER SECTION 254(2) OF THE ACT AND ACCORDINGLY THE SAME IS DISMI SSED. 15 MA NO. 56/JP/2019 SHRI DEEPAK BANSAL VS. ITO 15 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 09/12/2019 . SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH Y ADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 09/12/2019. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI DEEPAK BANSAL, KISHANGARH. 2. IZR;FKHZ@ THE RESPONDENT-ITO, WARD-2, KISHANGARH. 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 { MA NO. 56/JP/2019} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR
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