Appeal details
Counselvise Citation
[2019] 112 COUNSELVISE.COM (IT) 5086 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 25 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
22-11-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2010-2011
Appeal Filed On
27-06-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM . / MA NO.70/PUN/2019 (ARISING OUT OF ITA NO.717/PUN/2015) / ASSESSMENT YEAR : 2010-11 AJAY SHANTILAL LALWANI (HUF), C/O. M/S. MAHAVEER JEWELLERY, HOUSE, YASHODEEP 117, NAVI PETH, JALGAON-425001. PAN : AACHA7082C ....... / APPELLANT / V/S. JCIT, RANGE-1, JALGAON. / RESPONDENT ASSESSEE BY : SHRI HARI KRISHAN REVENUE BY : SHRI S.P. WALIMBE / DATE OF HEARING : 22.11.2019 / DATE OF PRONOUNCEMENT : 22.11.2019 / ORDER PER D. KARUNAKARA RAO, AM: THE PRESENT MISCELLANEOUS APPLICATION ARISES FROM THE ORDER IN ITA NO.717/PUN/2015 FOR THE ASSESSMENT YEAR 2010-11 DATED 28.11.2018 FILED BY THE ASSESSEE. 2. BEFORE US, AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS IS A CASE WHERE THE TRIBUNAL PASSED THE ORDER ON 28.11.2018 AND THE DUE DATE FOR FILING OF THE MA IS 30 TH MAY, 2019. HOWEVER, THE PRESENT MA IS FILED ON 27.06.2019 WHICH IS BEYOND THE TIME LIMIT PERMITTED BY THE STATUE. 2 MA NO.70/PUN/2019 3. ON THE OTHER HAND, LD. DR FOR THE REVENUE BROUGHT OUR ATTENTION TO THE ORDER OF THE TRIBUNAL DATED 01.08.2019 IN THE CASE OF SANTOSH HASTIMAL GUGALE VS. ACIT AND SUBMITTED THAT THE CALCULATION OF THE TIME LIMIT SHOULD BE FROM THE DATE OF THE ORDER OF THE TRIBUNAL AND NOT THE DATE OF THE SERVICE OF THE ORDER (COPY OF THE ORDER OF THE TRIBUNAL IS PLACED ON RECORD). 4. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE ORDER OF THE TRIBUNAL (SUPRA), WE FIND RELEVANT TO EXTRACT PARA 7 ONWARDS OF THE ORDER OF THE TRIBUNAL THE SAME ARE EXTRACTED HEREUNDER :- 5. WE HEARD BOTH THE SIDES ON THIS PRELIMINARY ISSUE ON THE LIMITATION OF PERIOD AND PERUSED THE WRITTEN SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE. RELATING TO THE ISSUE OF LIMITATION OF TIME, WE FIND RELEVANT TO EXTRACT THE PROVISIONS OF SECTION 254(2) OF THE ACT AND THE SAME READS AS UNDER :- ORDERS OF APPELLATE TRIBUNAL. 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. (1A) [***] (2) 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 : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE 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. FROM THE ABOVE, IT IS EVIDENT THAT SUB-SECTION (2) OF SECTION 254 OF THE ACT HAS BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 1.6.2016 AND THE EXPRESSION FOUR YEARS FROM THE DATE OF ORDER NOW STANDS SUBSTITUTED BY THE EXPRESSION SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IN THE INSTANT CASE, THE TRIBUNAL WAS PASSED THE ORDER ON 04.05.2018. SO END OF THE MONTH, BEING 31 ST MAY, 2018, AND THE PERIOD OF SIX MONTHS STARTS FROM THE 1 ST JUNE, 2018 AND THUS THE DUE DATE FOR FILING THE MA ON THE SAID ORDER OF THE TRIBUNAL IS 30 TH NOVEMBER, 2018. AGAINST THE SAID DUE DATE, THE ASSESSEE FILED THE PRESENT MAS 3 MA NO.70/PUN/2019 ON 07.01.2019 I.E. 38 DAYS AFTER THE EXPIRY OF DUE DATE. THUS, THERE IS 38 DAYS DELAY IN FILING THE PRESENT MAS. FROM THIS NUMERICAL AND THE LEGAL PERSPECTIVE, AS PER THE REVENUE, THE MAS FILED BY THE ASSESSEE ARE UNSUSTAINABLE IN LAW. 7. WE HAVE ALSO NOTED THAT THE ABOVE MANNER OF CALCULATION OF THE DUE DATES AND THE INTERPRETATION OF SECTION 254(2) OF THE ACT HAS THE STRENGTH OF THE DECISION OF THE TRIBUNAL OF THIS BENCH IN THE CASE OF DCIT VS. M/S. VEENA INDUSTRIES LTD. IN MA NO.67/PUN/2018 DATED 04.02.2019. RELEVANT PARAS FROM THE SAID ORDER OF THE TRIBUNAL (SUPRA) ARE EXTRACTED AS UNDER :- 4. WE HAVE HEARD THE SUBMISSIONS MADE BY LD. DR. THE MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF THE MISTAKE IN 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 PROVISIONS OF SECTION 254(2) HAVE BEEN AMENDED BY THE FINANCE ACT, 2016 W.E.F. 01-06-2016. AFTER AMENDMENT, SUB-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 THE ORDER WAS PASSED , WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUBSECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER: 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 SUB-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 SUBSECTION NOWHERE MENTIONS THAT IT IS THE DATE OF PASSING OF THE ORDER OR THE DATE OF SERVICE 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 LEGISLATURE IN ITS WISDOM HAS PURPOSEFULLY WORDED SUB-SECTION (2) IN A PARTICULAR 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 SUB-SECTION (2) WOULD HAVE BEEN WORDED IN A MANNER TO EXPRESS THAT INTENT. THIS FACT IS EXPLICITLY EVIDENT FROM A PERUSAL OF SUBSECTION (3) OF SECTION 253 WHEREIN THE LIMITATION 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 APPEAL 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 4 MA NO.70/PUN/2019 APPEALED AGAINST IS COMMUNICATED TO THE ASSESSEE OR TO THE [PRINCIPAL COMMISSIONER OR ] COMMISSIONER, AS THE CASE MAY BE : 6. SIMILAR IS THE CASE WHEN APPEAL TO THE HONBLE HIGH COURT IS FILED U/S. 260A AGAINST THE ORDER OF TRIBUNAL. THE RELEVANT EXTRACT OF SUBSECTION (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 FILE 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 LIS, THE SECTIONS AND THE SUB-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 ARE 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. KHUSHLANI 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 THIS 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 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 OUT 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. 8. FROM THE ABOVE, IT IS VERY CLEAR THAT APPLYING THE PRINCIPLE OF LITERAL INTERPRETATION, 30 TH NOVEMBER, 2018 IS THE DUE DATE FOR FILING THE PRESENT MAS AND THE ASSESSEE FAILED TO DO SO. CONSIDERING THE AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT AS ARE APPLICABLE TO THE INSTANT CASE, WE ARE OF THE OPINION, THE PRESENT MAS ARE NOT MAINTAINABLE. FURTHER, WE FIND THE JUDGEMENTS/DECISIONS CITED BY THE LD. AR ARE FOUND TO BE IN THE LIGHT OF THE PRE-AMENDED PROVISIONS OF 5 MA NO.70/PUN/2019 THE STATUTE. CONSIDERING OUR DECISION ON THE PRELIMINARY ISSUE OF LIMITATION, WE FIND THE MAS NEED TO BE DISMISSED WITHOUT GOING INTO THE MERITS OF THE ISSUE FOR RECTIFICATION. ACCORDINGLY, BOTH THE MAS ARE DISMISSED AS BARRED BY LIMITATION. 5. CONSIDERING THE ABOVE, WE ARE OF THE OPINION THAT THE MA FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND HENCE THE SAME IS DISMISSED AS TIME BARRED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND DAY OF NOVEMBER, 2019. SD/- SD/- (PARTHA SARATHI CHAUDHURY) (D. KARUNAKARA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 22 ND NOVEMBER, 2019 SUJEET / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-2, NASHIK. 4. THE PR. CIT-2, NASHIK. 5. , , , / DR, ITAT, A BENCH, PUNE. 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.
