Deputy Commissioner of Income-tax, Central Circle -2(1), Pune V. Veena Industries Ltd., Pune

MA 67/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5456 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 11-01-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 28-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Assessee Lawyers: N O N E
• Keywords: Rectification of order; Period of limitation; Time period of passing order; Condonation of delay
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / MA NO. 67 /PUN/201 8 (ARISING OUT OF ITA NO . 1904 /PUN/201 4 ) / ASSESSMENT YEAR : 20 10 - 11 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), PUNE ....... / APP LICANT / V/S. M/S. VEENA INDUSTRIES LTD., 103/104, STELLER ENCLAVE, NEW D.P. ROAD, AUNDH, PUNE 411007 PAN : AAACV9329E / RESPONDENT ASSESSEE BY : N O N E REVENUE BY : SHRI SANJEEV GHEI / DATE OF HEARING : 11 - 01 - 2019 / DATE OF PRONOUNCEMENT : 04 - 0 2 - 2019 / ORDER PER VIKAS AWASTHY, JM : TH IS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE U/S. 254(2) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 31 - 08 - 2013 VIDE WHICH APPEAL OF THE ASSESSEE IN ITA NO . 1904/PUN/2014 FOR THE ASSESSMENT YEAR 2010 - 11 WAS ADJUDICATED. 2 MA NO. 67/PUN/2018, A.Y. 2010 - 11 2. THE MISCELLANEOUS APPLICATION HAS BEEN FILED WITH A DELAY OF 89 DAYS. THE REVENUE HAS FILED AN APPLICATION SEEKING CONDONATION OF DELAY IN FILING OF THE MISCELLANEOUS APPLICATION. 3. SHRI SANJEEV GHEI REPRESENTING THE DEPARTMENT SUBMITTED THAT THE MISCELLANEOUS APPLICATION U/S. 254(2) HAS BEEN FILED WITHIN A PERIOD OF LIMITATION , IF THE LIMITATION IS COUNTED FROM THE DATE OF RECEIPT OF ORDER. IF THE PERIOD OF LIMITATION IS COUNTED FROM THE END OF THE MONTH IN WHICH THE ORDER IS PASSED THERE IS DELAY OF 89 DAYS. THE LD. DR SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF LILADHAR T. KHUSHLANI VS. COMMISSIONER OF CUSTOM IN TAX APPEAL NO. 9 15 OF 2016 DECIDED ON 25 - 01 - 2017 HAS HELD THAT THE PERIOD OF LIMITATION FOR FILING RECTIFICATION APPLICATION STARTS FROM THE DATE OF DISPATCH OF THE ORDER AND NOT FROM THE DATE OF ACTUAL PASSING THE ORDER. SIMILAR VIEW HAS BEEN TAKEN BY CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF JAGMOHAN GURBAKSHISH SINGH VS. DCIT IN MA NO.42/CHD/2018 IN ITA NO. 102/CHD/2017 DECID E D ON 27 - 04 - 2018. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DR. THE MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF THE MISTAKE I N THE ORDER OF TRIBUNAL DATED 31 - 08 - 2017 HAS BEEN FILED BY THE DEPARTMENT ON 28 - 05 - 2018. THUS, THE MISCELLANEOUS APPLICATION FOR RECTIFICATION OF MISTAKE HAS BEEN FILED BEYOND THE PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH ORDER IS PASSED. THE P ROVISIONS OF SECTION 254(2) HAVE BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01 - 06 - 2016. AFTER AMENDMENT , S UB - SECTION (2) OF SECTION 254 READS AS UNDER : (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH TH E ORDER WAS PASSED , WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD , AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER: 3 MA NO. 67/PUN/2018, A.Y. 2010 - 11 ACCORDING TO AMENDED PROVISIONS THE LIMITATION FOR FILING MISCELLANEOUS APPLICATION IN PRESENT CASE COMES TO AN END ON 28 - 02 - 2018. 5. A BARE PERUSAL OF THE PROVISIONS OF S UB - SECTION (2) WOULD SHOW THAT THE MISCELLANEOUS APPLICATION FOR RECTIFICATION OF ANY MISTAKE APPARENT ON RECORD IN THE TRIBUNAL ORDER COULD BE FILED WITHIN A PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. THE AMENDED S UB - SECTION NOWHERE MENTIONS THAT IT IS THE DATE OF PASSING OF THE ORDER OR THE DATE OF SE RVICE OF THE ORDER THAT HAS TO BE CONSIDERED FOR THE PURPOSE OF DETERMINING LIMITATION PERIOD OF SIX MONTHS FOR FILING THE MISCELLANEOUS APPLICATION UNDER THE AFORESAID SECTION. THE LEGISLAT URE IN ITS WISDOM HAS PURPOSEFULLY WORDED S UB - SECTION (2) IN A PA RTICULAR MANNER SO AS TO DETERMINE THE PERIOD OF LIMITATION FOR FILING MISCELLANEOUS APPLICATION FOR RECTIFICATION OF MISTAKE WITHIN A SPECIFIED TIME OF 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IF THE INTENTION OF THE LEGISLATURE WAS TO MARK THE PERIOD OF LIMITATION FROM THE DATE OF SERVICE OF ORDER THEN THE S UB - SECTION (2) WOULD HAVE BEEN WORDED IN A MANNER TO EXPRESS THAT INTENT . THIS FACT IS EXPLICITLY EVIDENT FROM A PERUSAL OF S UB - SECTION (3) OF SECTION 253 WHEREIN THE LIMITAT ION PERIOD OF APPEALS TO THE APPELLATE TRIBUNAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IS MENTIONED. THE PROVISIONS OF SECTION 253(2) CLEARLY STATES THE PERIOD OF LIMITATION STARTS FROM THE DATE OF COMMUNICATION OF ORDER AGAINST WHICH A PPEAL IS TO BE FILED. FOR THE SAKE OF READY REFERENCE SUB - SECTION (3) OF SECTION 253 IS REPRODUCED HERE - IN - BELOW : (3) EVERY APPEAL UNDER SUB - SECTION (1) OR SUB - SECTION (2) SHALL BE FILED WITHIN SIXTY DAYS OF THE DATE ON WHICH THE ORDER SOUGHT TO BE APPEALED AGAINST IS COMMUNICATED TO THE ASSESSEE OR TO THE [PRINCIPAL COMMISSIONER OR ] COMMISSIONER, AS THE CASE MAY BE : 4 MA NO. 67/PUN/2018, A.Y. 2010 - 11 6. SIMILAR IS THE CASE WHEN APPEAL TO THE HONBLE HIGH COURT IS FILED U/S. 260A AGAINST THE ORDER OF TRIBUNAL. THE RELEVANT EXTR ACT OF SUB - SECTION (2) OF SECTION 260A IS REPRODUCED HERE - IN - BELOW : (2) [ THE [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR THE [PRINCIPAL COMMISSIONER OR] COMMISSIONER OR AN ASSESSEE AGGRIEVED BY ANY ORDER PASSED BY THE APPELLATE TRIBUNAL MAY F ILE AN APPEAL TO THE HIGH COURT AND SUCH APPEAL UNDER THIS SUB - SECTION SHALL BE - ] (A) FILED WITHIN ONE HUNDRED AND TWENTY DAYS FROM THE DATE ON WHICH THE ORDER APPEALED AGAINST IS RECEIVED BY THE ASSESSEE OR THE [ PRINCIPAL CHIEF COMMISSIONER OR ] CHIEF COMMISSIONER OR [PRINCIPAL COMMISSIONER OR] COMMISSIONER ] ; THUS, FROM PERUSAL OF THE ABOVE SECTIONS IT IS UNAMBIGUOUSLY CLEAR THAT WHERE THE LEGISLATURE INTENDED TO MARK PERIOD OF LIMITATION FROM THE DATE OF RECEIPT OF THE ORDER BY THE PARTIES TO THE LI S , THE SECTIONS AND THE S UB - SECTIONS HAVE BEEN WORDED IN UNAMBIGUOUS MANNER TO CONVEY THE INTENT. NO FURTHER INTERPRETATION OF SECTIONS OR INTENTIONS ARE REQUIRED. 7 . IT IS A WELL SETTLED PRINCIPLE OF INTERPRETATION OF STATUS THAT WHERE THE MEANING AR E SELF EXPLANATORY FROM THE PROVISIONS AND THE PROVISIONS OF SECTION CAN BE INTERPRETED LITERALLY NO FURTHER INTERPRETATION IS REQUIRED. WE FURTHER FIND THAT THE RELIANCE BY THE REVENUE ON THE DECISION OF GUJARAT HIGH COURT IN THE CASE OF LILADHAR T. KHUS HLANI VS. COMMISSIONER OF CUSTOM (SUPRA) IS MISPLACED. THE SAID DECISION OF HONBLE GUJARAT HIGH COURT WAS IN CONTEXT OF UNAMENDED PROVISIONS OF SECTION 254(2) I.E. PRIOR TO THE AMENDMENT BY FINANCE ACT, 2016. THEREFORE, THE SAID DECISION DOES NOT HELP THE CAUSE OF REVENUE. 8. IT IS A TRITE LAW THAT TRIBUNAL HAS NO JURISDICTION TO CONDONE DELAY IN FILING OF MISCELLANEOUS APPLICATION U/S. 254(2) OF THE ACT. IN THI S CONTEXT IT WOULD BE RELEVANT TO MENTION THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF RAJA MALWINDER SINGH VS. UNION OF INDIA & ANR. REPORTED AS 278 ITR 568 AND THE DECISION OF DELHI BENCH OF TRIBUNAL IN THE 5 MA NO. 67/PUN/2018, A.Y. 2010 - 11 CASE OF RAHUL JEE & CO. ( P) LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AS 120 ITD 481. SIMILAR VIEW HAS BEEN TAKEN BY THE CO - ORDINATE BENCH OF TRIBUNAL IN THE CASE OF SHRI KASTURILAL SARDARILAL LUTHRA VS. DY. COMMISSIONER OF INCOME TAX IN MA NO. 38/PUN/2017 ARISING OU T OF ITA NO. 923/PUN/2011 FOR ASSESSMENT YEAR 2003 - 04 DECIDED ON 04 - 04 - 2018. THUS, IN VIEW OF THE FACTS AND THE CASE LAWS DISCUSSED ABOVE , THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED IN LIMINE , BEING BARRED BY LIMITATION. 9. IN THE RESULT, THE MISCELLANEOUS APPLICATION BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON MONDAY, T HE 04 TH DAY OF FEBRUARY, 2019. SD/ - SD/ - ( . /D. KARUNAKARA RAO ) ( / VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 04 TH FEBRUARY, 2019. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - I, PUNE 4. / THE CIT( CENTRAL), PUNE 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / / // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE