Cherian Varkey Construction Co.(P) Ltd, Cochin V. The ACIT, Cochin

MA 58/COCH/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6396 (ITAT-COCHIN)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 21-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI CHANDRA POOJARI, AM & SHRI GEORGE GEORGE K, JM MA NO. 58 /COCH/201 7 : ASST.YEAR 200 6 - 200 7 (ARISING OUT OF MA NO.21/COCH/2015 & ITA NO. 25 /COCH/201 4 ) M/S.CHERIAN VARKEY CONSTRUCTION CO. P.LTD. KADAVANTHARA COCHIN 682 020 PAN : AABCC8393A . VS. THE ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 1(1) KOCHI. (APP L ICA NT) (RESPONDENT) APPLICANT BY : SMT.PARVATHY AMMAL, CA RESPONDENT BY : SRI. A.DHANARAJ, SR.DR DATE OF HEARING : 06 .0 4 .2018 DATE OF PRONOUNCEMENT : 06 .04 .2018. O R D E R PER GEORGE GEORGE K, JM THIS MISCELLANEOUS APPLICATION AT THE INSTANCE OF THE ASSESSEE IS ARISING OUT OF THE ORDER OF THE ITAT IN MA NO.21/ COCH/2015 IN APPEAL NO.25/COCH/2014 . 2. AT THE VERY OUTSET, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE PRESENT APPLICATION BEING AN M.A. ARISING OUT OF THE ORDER OF THE TRIBUNAL IN A N M.A., THE SAME IS NOT MAINTAINABLE. 3. THE LEARNED AR WAS DULY HEARD. 4. SECTION 254(2) OF TH E I.T.ACT EMPOWERS THE TRIBUNAL TO RECTIFY ANY MISTAKE APPARENT ON RECORD ARISING FROM AN ORDER OF THE TRIBUNAL PASSED U/S 254(1) OF THE I.T.ACT. THE ORDER P ASSED M A NO. 58 / COCH /201 7 M/S.CHERIYAN VARKEY CONSTRUCTION CO.P.LTD . 2 BY THE TRIBUNAL IN A MISCELLANEOUS APPLICATION IS AN ORDER PASSED U/S 254(2) OF THE I.T.ACT A ND NOT SECTION 254(1) OF THE I.T.ACT. T HEREFORE, A M.A. AGAINST AN ORDER OF THE TRIBUNAL PASSED IN AN MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE. THE HONBLE ORI SSA HIGH COURT IN THE CASES OF CIT & ANOTHER V. INCOME TAX APPELLATE TRIBUNAL & OTHERS [(199 2) 196 ITR 838 (ORI.)] , HAD HELD THAT AN ORDER REJECTING AN APPLICA TION FOR RECTIFICATION U/S 254(2 ) OF THE I.T.ACT IS NOT AN ORDER PASSED U/S 254(1) OF THE I.T.ACT AND CANNOT BE RECTIFIED U/S 254(2) OF THE I.T.ACT. THE SAME VIEW WAS TAKEN BY THE HON BLE KERALA HIGH COURT IN THE CASE OF CIT V. AISWARYA TR ADING CO. [(2011) 331 ITR 521)]. 5. EVEN IF THIS M.A. IS CONSIDERED ARIS ING OUT OF THE ORIGINAL ORDER OF THE TRIBUNAL DATED 18.12.2014 , THE SAME WA S TIME BARRED BY LIMITATION. THE PRESENT M.A. WAS FILED BEYOND SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORIGINAL ORDER OF THE TRIBUNAL WAS PASSED (ORIGINAL ORDER OF THE TRIBUNAL DATED 18.12.2014). THE TIME LIMIT SPECIFIED FOR FILING A RECTIFICATION APPLICATION U/S 254(2) WAS LIMITED TO SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE TRIBUNAL ORDER U/S 254(1) WAS PASSED ( WITH EFFECT FROM 01.06.2016 ) . PRIOR TO THE AMENDMENT, THE TIME LIMIT THAT WAS FIXED FOR FILING A RECTIFICATION APPLICATION WAS FOUR YEARS FROM THE DATE OF THE ORDER SOUGHT TO BE RECTIFIED. EVEN IF WE RECKON SIX MONTHS FROM 01.06.2016, THIS MA (ITA NO.58/COCH/ 2015) WAS FI LED BEYOND SIX MONTHS FROM THE DATE OF AMENDMENT. HENCE, THIS M.A. IS DISMISSED AS BARRED BY LIMITATION. IT IS ORDERED ACCORDINGLY. M A NO. 58 / COCH /201 7 M/S.CHERIYAN VARKEY CONSTRUCTION CO.P.LTD . 3 6 . IN THE RESULT, THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 06 TH DAY OF APRIL , 2018 . SD/ - SD/ - (CHANDRA POOJARI) ( GEORGE GEORGE K. ) ACCOUNTANT MEMBER JUDICIAL MEMBER C OCHIN ; DATED : 06 TH APRIL , 2018 . DEVDAS* COPY OF THE ORDER FORWARDED TO : BY ORDER (ASSTT. REGISTRAR) ITAT, COCHIN 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT(A) - II , KOCHI. 4. THE CIT, KOCHI . 5. DR, ITAT, COCHIN 6. GUARD FILE.