Income-tax Officer, Ward - 1(5), Jalgaon V. M/s Maharashtra Pulse Mill, Jalgaon

MA 69/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2458 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHABANA PARVEEN
• Keywords: Period of limitation; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM M A NO. 69 / P U N/201 8 ARISING OUT OF ITA NO. 2403 /P U N/201 2 ASSESSMENT YEAR : 20 0 7 - 0 8 THE INCOME TAX OFFICER, WARD 1(5), JALGAON . APPLICANT VS. M/S. MAHARASHTRA PULSE MILL, 68/A, KALASH, OPP. INDIAN OIL BHAVAN, SHIVRAM NAGAR, JALGAON 425001 . R ESPONDENT PAN: AACFM1869K APPLICANT BY : MS. SHABANA PARVEEN RESPONDENT BY : SHRI PRAMOD SHINGTE / DATE OF HEARING : 0 8 . 0 3 .201 9 / DATE OF PRONOUNCEMENT: 12 . 0 3 .201 9 / ORDER PER SUSHMA CHOWLA, JM : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE APPLICANT - REVENUE AGAINST THE ORDER OF TRIBUNAL D ATED 2 4 . 0 5 .201 7 . 2. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS AFTER DELAY OF 67 DAYS. THE PLEA OF REVENUE BEFORE US IS THAT THE ORDER OF TRIBUNAL DATED 24.05.2017 WAS RECEIVED IN THE OFFICE OF PR.CIT - 2, NASHIK ON 20.09.2017 . SINCE THE TAX EF FECT IN THE PRESENT APPEAL WAS BELOW THE PRESCRIBED LIMITS FOR FILING THE APPEAL TO THE HONBLE 2 M A NO. 69 /P U N/201 8 HIGH COURT, HENCE AN APPROVAL WAS GIVEN TO FILE THE PRESENT MISCELLANEOUS APPLICATION. THE DATE FOR FILING THE APPEAL TO THE HONBLE HIGH COURT HAD EXPIRED ON 17.01.2018. 3. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ON THE OTHER HAND, PLACED RELIANCE ON THE ORDER OF PUNE BENCH OF TRIBUNAL IN SHRI KASTURILAL SARDARILAL LUTHRA VS. DCIT IN MA NO.38/PUN/2017 IN ITA NO.923/PUN/2011, RELATING TO ASSESSME NT YEAR 2003 - 04, ORDER DATED 04.04.2018 AND OTHER DECISIONS OF VARIOUS BENCHES OF TRIBUNAL AND POINTED OUT THAT BECAUSE OF AMENDMENT TO SECTION 254(2) OF THE ACT, DELAY IN FILING THE PRESENT MISCELLANEOUS APPLICATION LATE CANNOT BE CONDONED. HE THEN, PLAC ED RELIANCE ON THE ORDER OF BANGALORE BENCH OF TRIBUNAL IN THE CASE OF M/S. ALTENCALSOFT LABS (INDIA) PVT. LTD. VS. DCIT IN MP NO.69/BANG/2018 IN IT(TP)A NO.403/BANG/2017, RELATING TO ASSESSMENT YEAR 2012 - 13, ORDER DATED 12.10.2018 WHICH HAD CONSIDERED THE DECISION OF THE HONBLE HIGH COURT OF GUJARAT IN PETERPLAST SYNTHETICS (P.) LTD. VS. ACIT REPORTED IN 364 ITR 16 (GUJ) AND HAD HELD THAT BECAUSE OF THE AMENDMENT TO SECTION 254(2) OF THE ACT, LIMITATION PERIOD OF SIX MONTHS IS PROVIDED NOT FROM THE DATE O F ORDER BUT FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. 4. ON PERUSAL OF MISCELLANEOUS APPLICATION, WE FIND THAT PRESENT MISCELLANEOUS APPLICATION WAS FILED AFT ER DELAY OF 67 DAYS. THE ISSUE OF WHETHER SUCH DELAY CAN BE CONDONED HAS BEEN ADD RESSED BY PUNE BENCH OF TRIBUNAL IN SHRI KASTURILAL SARDARILAL LUTHRA VS. DCIT (SUPRA) AND IT HAS BEEN HELD AS UNDER: - 3 M A NO. 69 /P U N/201 8 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIVES OF RIVAL SIDES. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE U/S. 254(2) OF THE ACT SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 29 - 07 - 2016. THE PROVISIONS OF SECTION 254(2) HAVE BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01 - 06 - 2016. THE AMENDED PROVISIONS OF SUBSECTION (2) OF SECTION 254 READS AS UNDER : THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE 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. A BARE PERUSAL OF AMENDED PROVISIONS SHOW THAT THE MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF ANY MISTAKE APPARENT FROM RECORD CAN BE FILED BY EITHER S IDE WITHIN A PERIOD OF SIX MONTHS FROM THE END OF MONTH IN WHICH THE ORDER WAS PASSED. IN THE PRESENT CASE, THE ORDER WAS PASSED ON 29 - 07 - 2016, THEREFORE, THE LIMITATION FOR FILING OF MISCELLANEOUS APPLICATION U/S. 254(2) STARTS FROM 1ST AUGUST, 2016 AND T HE LIMITATION ENDS ON 31ST JANUARY, 2017. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE/APPLICANT ON 08 - 05 - 2017. THEREFORE, THIS MISCELLANEOUS APPLICATION HAS BEEN FILED WITH THE DELAY OF 97 DAYS AND HENCE, IS BARRED BY LIMITATION. THE TRIB UNAL HAS NO POWER TO CONDONE THE DELAY IN FILING OF MISCELLANEOUS APPLICATION UNDER PROVISIONS OF SECTION 254(2) OF THE ACT. 5. THE HONBLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF RAJA MALWINDER SINGH VS. UNION OF INDIA & ANR. REPORTED AS 278 ITR 568 HAS HELD THAT THE TRIBUNAL HAS NO JURISDICTION TO AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) OF SECTION 254 AFTER THE EXPIRY OF PRESCRIBED TIME LIMIT, WHETHER IT IS ON ITS OWN VOLITION OR ON AN APPLICATION BEING MADE BY THE ASSESSEE OR THE ASSESSI NG OFFICER. SIMILAR VIEW HAS BEEN TAKEN BY THE DELHI BENCH OF TRIBUNAL IN THE CASE OF RAHUL JEE & CO. (P) LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED AS 120 ITD 481 AND SEVERAL OTHER DECISIONS BY VARIOUS BENCHES OF THE TRIBUNAL. 6. THE LD. COU NSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF DISTRICT CENTRAL COOP. BANK LTD. VS. UNION OF INDIA (SUPRA). WE FIND THAT THE FACTS IN THE SAID CASE ARE DISTINGUISHABLE. IN THE SAID CASE THE ORD ER OF TRIBUNAL WAS PASSED BEFORE AMENDMENT OF SECTION 254(2) BY THE FINANCE ACT 2016. THE TRIBUNAL REJECTED APPLICATION OF THE ASSESSEE U/S. 254(2) BY APPLYING AMENDED PROVISIONS. THE HONBLE HIGH COURT ALLOWING THE PETITION OF ASSESSEE HELD THAT THE NEW L AW OF LIMITATION PROVIDING A SHORTER PERIOD CANNOT BE APPLIED RETROSPECTIVELY. IT IS NOT THE CASE OF ASSESSEE THAT THE TRIBUNAL ORDER SOUGHT TO BE RECTIFIED IS PASSED PRIOR TO AMENDMENT. THUS, THE CASE LAW ON WHICH THE LD. COUNSEL FOR THE ASSESSEE HAS PLAC ED RELIANCE DOES NOT SUPPORT THE CAUSE OF ASSESSEE. 7. THE TRIBUNAL CANNOT GO INTO THE REASONS/MERITS FOR FILING OF MISCELLANEOUS APPLICATION, AS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE SUFFERS FROM LIMITATION, HENCE, THE SAME IS DISMISSED. 5. FUR THER, THE OTHER BENCHES OF TRIBUNAL HAVE ALSO HELD SIMILAR VIEW WITH SPECIAL REFERENCE TO THE BANGALORE BENCH OF TRIBUNAL IN M/S. ALTENCALSOFT LABS 4 M A NO. 69 /P U N/201 8 (INDIA) PVT. LTD. VS. DCIT (SUPRA). IN THE TOTALITY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE MISCELLA NEOUS APPLICATION FILED AFTER DELAY OF PERIOD PRESCRIBED IS NOT MAINTAINABLE, HENCE THE SAME IS DISMISSED. 6 . IN THE RESULT, MISCELLANEOUS APPLICATION OF APPLICANT IS DISMISSED. ORDER PRONOUNCED ON THIS 12 TH DAY OF MARCH , 201 9 . SD/ - SD/ - (ANIL CHATURVEDI) (SUSHMA CHOWLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 12 TH MARCH , 201 9 . GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. THE APP LICANT ; 2. THE RESPONDENT; 3. THE CIT(A) - II , NASHIK ; 4. THE CIT - II , NASHIK ; 5. THE DR A , ITAT, PUNE; 6. GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE