KRISHAN MOHAN GOYAL, Jaipur V. ITO, Ward-2(4), Jaipur

MA 71/JPR/2020

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 6223 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-01-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 01-12-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: VIPIN SINGHAL
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Right to appeal; Time period of passing order; Condonation of delay; Set aside
• Section: 254(2); 73; 72; 13; 12; 11

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S A, JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NO. 71/JP/2020 (ARISING OUT OF ITA NO. 349/JP/2013) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2007-08 SH. KRISHAN MOHAN GOYAL, 102/89, MEERA MARG, MANSAROVAR, JAIPUR CUKE VS. THE ITO, WARD-2(4), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABBPG 3655 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : VIPIN SINGHAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : MONISHA CHOUDHARY (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 22/01/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 29/01/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH D ECISION IN ITA NO. 349/JP/2013 DATED 20/07/2015. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE TRIBUNAL HAS PASSED THE ORDER ON 20.07.2015 STATING THAT THE NOTICE FIXING THE HEARING HAS BEEN RETURNED UNSERVED AND APPARENTLY, THE ADDRESS OF THE ASSESSEE HAS CHANGED AND HE HAS NOT INTIMATED THE N EW ADDRESS AND THE ASSESSEE THUS WAS NOT INTERESTED AND THE APPEAL OF THE ASSESSEE WAS DISMISSED SUMMARILY WITHOUT DECIDING ON MERITS. IT WAS SUBMITTED THAT M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 2 ASSESSEES ADDRESS WAS CHANGED PREVIOUSLY AND HE HA S INTIMATED THE SAME TO LD CIT(A) AS WELL AS IN APPEAL FILED BEFORE THE TRIBUNAL, THE NEW ADDRESS HAS BEEN GIVEN AND THEREFORE, THE ORDER SO PASSED B Y THE TRIBUNAL BE RECTIFIED AND RECALLED TO HEAR THE ASSESSEE ON MERI TS OF THE CASE. 3. PER CONTRA, THE LD DR SUBMITTED THAT ORDER WAS PASSED BY THE TRIBUNAL ON 20/07/2015 AND THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE ON 1.12.2020 WHICH IS BEYOND THE LIMITATIO N PERIOD AS PROVIDED U/S 254(2) OF THE ACT. IT WAS ACCORDINGLY SUBMITTED THAT THE MISC. APPLICATION SO FILED BY THE ASSESSEE IS NOT MAINTAI NABLE AS FILED BEYOND THE LIMITATION PERIOD AND IT IS CONSISTENT POSITION TAK EN BY THE TRIBUNAL THAT IT DOESNT HAVE THE POWER TO CONDONE THE DELAY IN FILI NG THE MISC. APPLICATION. 4. IN HIS REJOINDER, THE LD AR SUBMITTED THAT THE T RIBUNAL HAS THE POWERS TO CONDONE THE DELAY U/S 254(2) OF THE ACT AND THER EFORE, THE MISC. APPLICATION SO FILED BE ACCEPTED, HOWEVER, AT THE S AME TIME, IT IS NOTED THAT THE LD AR HAS NOT DISPUTED THE FACT THAT THE ORDER SO PASSED BY THE TRIBUNAL HAS BEEN RECEIVED BY THE ASSESSEE AND FURTHER, NO R EASONS HAVE BEEN SPECIFIED FOR THE DELAY IN FILING THE MISC. APPLICA TION. 5. HEARD BOTH THE PARTIES AND PURUSED THE MATERIAL AVAILABLE ON RECORD. IN THIS REGARD, ON PERUSAL OF THE RECORDS, WE FIND THAT THE MATTER WAS FIXED FOR HEARING ON 20.07.2015 WHEREIN NONE APPEARED ON BEHALF OF THE ASSESSEE AND THE ORDER WAS PRONOUNCED BY THE CO-ORD INATE BENCH ON THE VERY SAME DATE DISMISSING THE APPEAL OF THE ASSESSE E AND THE ORDER WAS DISPATCHED TO THE ASSESSEE ON 27.07.2015. IT IS NOT IN DISPUTE THAT THE ASSESSEE IS IN RECEIPT OF THE ORDER SO PASSED BY TH E COORDINATE BENCH. THE UNAMENDED PROVISIONS OF SECTION 254(2) HAS PRESCRIB ED THE LIMITATION PERIOD M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 3 OF FOURS YEARS FROM THE DATE OF THE ORDER AND UNDER THE AMENDED PROVISIONS W.E.F 1.6.2016, THE PERIOD OF LIMITATION HAS BEEN C URTAILED TO SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS PAS SED. THEREFORE, IN THE INSTANT CASE, WHERE THE ORDER WAS PASSED BY THE COO RDINATE BENCH ON 20.07.2015 PRIOR TO THE AMENDMENT W.E.F 1.6.2016, T HE PERIOD OF LIMITATION WILL BE AVAILABLE TO THE ASSESSEE FROM THE DATE OF AMENDMENT I.E. ON 01.06.2016 FOR A PERIOD 6 MONTHS. THUS, THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE ON 01.12.2020 IS BEYOND THE PERIOD OF LIMITATION WHICH HAS EXPIRED ON 30.11.2016. THE LIMITATION PERIOD IS PRO VIDED IN THE ACT ITSELF AND THERE IS NO PROVISION FOR CONDONATION OF DELAY, IF ANY, IN FILING THE MISCELLANEOUS APPLICATION AND CONSEQUENTLY, THE TRI BUNAL HAS NO JURISDICTION/POWER TO CONDONE THE DELAY IN FILING T HE MISCELLANEOUS APPLICATION. THE TRIBUNAL HAS TAKEN A CONSISTENT V IEW ON THIS ISSUE AND IN CASE OF SHRI VINOD KUMAR SINGH VS. ITO IN M.A. NO. 12/JP/2018, THE COORDINATE BENCH OF THIS TRIBUNAL VIDE ORDER DATED 06.02.2018 HAS CONSIDERED AN IDENTICAL ISSUE OF DELAY IN FILING TH E MISCELLANEOUS APPLICATION AND MAINTAINABILITY OF SUCH APPLICATION IN PARA 4 A S UNDER :- 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 COMMUNICATION IN THE FORM NO. 36 AS THE ADDRESS OF THE COUNSEL WHO W AS AUTHORIZED AND REPRESENTING THE ASSESSEE IN THE APPEAL. THE AS SESSEE NOW COME UP WITH THE PLEA THAT THE ASSESSEE HAS TAKEN THE CE RTIFIED COPY ONLY ON 08.09.2017 WHICH IS ONLY ANOTHER COPY OF THE IMP UGNED ORDER PROVIDED TO THE ASSESSEE ON HIS REQUEST. HOWEVER, O NCE THE ORDER WAS DULY SEND TO THE ASSESSEE AT THE GIVEN ADDRESS THEN, THIS PLEA OF THE ASSESSEE CANNOT BE ACCEPTED. UNDISPUTEDLY THE P RESENT M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 4 MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASS ESSEE BEYOND THE PERIOD OF 6 MONTHS FROM THE END OF THE MONTH IN WHI CH THE IMPUGNED ORDER WAS PASSED. THUS, IN THE ABSENCE OF ANY PROVI SION U/S 254(2) OR ANY OTHER PROVISIONS OF THE INCOME TAX ACT TO CO NDONE THE DELAY IN FILING THE MISCELLANEOUS APPLICATION WE DO NOT F IND ANY SUBSTANCE IN THE PLEA OF THE ASSESSEE TO CONDONE THE DELY. THE C OORDINATE BENCH OF THIS TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE OF MAINTAINABILITY OF THE MISCELLANEOUS APPLICATION FILED BEYOND THE PERI OD OF LIMITATION IN CASE OF ITO VS. SHRI RAM RATAN MODI IN MA NO. 93/JP /2017 VIDE ORDER DATED 27.12.2017 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 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 UNDER:- (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 72 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPA RENT 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 ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTH ERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 5 UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNA L HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AN D HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D : 5 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTO BER, 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 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 T HE APPEAL WITHIN THE SAID PERIOD OF STAY SPECIFIED IN THAT OR DER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN T HE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DELAY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABL E TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORD ER OF STAY FOR A FURTHER PERIOD OR PERIODS AS IT THINKS FIT; S O, HOWEVER, THAT 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 AP PELLATE TRIBUNAL SHALL DISPOSE OF THE APPEAL WITHIN THE PER IOD 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 O R THE PERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PRO VISO, WHICH SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SIXTY- FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AF TER THE EXPIRY M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 6 OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DIS POSING OF 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 RECTI FIED HAS BEEN REDUCED FROM 4 YEARS 6 MONTHS. THERE IS NO QUA RREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CAN NOT BE GIVEN EFFECT RETROSPECTIVELY SO AS TO TAKE WAY OF R IGHT OF THE PARTIES TO FILE THE APPLICATION OF RECTIFICATION. T HE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERATIVE BANK LTD. VS. UNION OF INDIA(SUPRA) HAS OBSERVED IN PARAS 9 AND 1 0 AS UNDER:- 09- THE AMENDMENT HAS BEEN MADE EFFECTIVE VIRTUAL LY IN CASE OF ASSESSEE WITH RETROSPECTIVE EFFECT THOUGH THE AM ENDMENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RESPECTIVE EFFECT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPECTIVE 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 T HE SOME HAS NOT BEEN DONE TILL THE AMENDMENT CAME INTO FORCE EXTINGUISHING 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 FORCED W.E.F. 01.06.2016 THEN AFTER THE SUBSTITUTIO N OF THE PROVISION W.E.F. 01.06.2016 THE LIMITATION PERI OD FOR RECTIFICATION OF MISTAKE WOULD BE AVAILABLE ONLY UP TO 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND SINCE THE ORDER WAS M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 7 PASSED PRIOR TO THE AMENDMENT, THEREFORE, THE SAID PERIOD OF LIMITATION WILL BE AVAILABLE TO THE ASSES SEE FROM THE 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 BEYO ND THE PERIOD OF LIMITATION WHICH HAS EXPIRED ON 30.11.2016. WE MAY CLARIFY THAT IN CASE THE IMPUGNE D ORDER IS PRIOR TO THE AMENDMENT W.E.F. 01.06.2016 T HEN THE LIMITATION PERIOD OF 6 MONTHS WOULD RECKON FRO M 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NO T CURTAIL BY THE SUBSEQUENT AMENDMENT. WE FURTHER, NOTE THAT THE BANGALORE BENCHES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 166 ITD 172 HAD THE OCCASI ON TO CONSIDER AN IDENTICAL ISSUE AND ONE OF US THE JUDIC IAL 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 REC TIFICATION 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 RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF T HE MISTAKE 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 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 M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 8 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. THE TIME PERIOD WITHIN WHICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED HAS BEEN REDUCED FROM 4 YEARS TO 6 MONTHS 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 I S PROVIDED ONLY FOR 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORD ER 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 25 4(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 LIMI TATION WAS PROVIDED AS 4 YEARS FOR RECTIFICATION OF MISTAKE AP PARENT FROM RECORD AND THEREFORE THERE WAS NO PROVISION IN THE INCOME- TAX ACT FOR CONDONATION OF ANY DELAY OF ANY PETITION FOR RECTIF ICATION OF MISTAKE FILED AFTER THE SAID PERIOD OF 4 YEARS. EVEN OTHERW ISE, THE LIMITATION OF 4 YEARS WAS MORE THAN THE LIMITATION FOR FILING OF THE SUIT AND AS PER THE GENERAL STATUTE I.E., THE LIMITATION ACT WHERE THE LIMITATION FOR INSTITUTION OF SUIT IS PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND THEREFORE THERE WAS NO PR OVISION EVEN IN THE LIMITATION ACT FOR CONDONATION OF DELAY IN RESP ECT 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 PROVIDE D IN THE INCOME-TAX ACT. THIS PRINCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPECIAL STATUTE, THEN THE GENERAL STATUTE IS NOT AP PLICABLE TO THE EXTENT OF THE PROVISION PROVIDED IN THE SPECIAL STA TUTE. WE FIND THAT PRIOR TO THE AMENDMENT THE LIMITATION FOR RECTIFICA TION OF MISTAKE WAS 4 YEARS AS PROVIDED UNDER SECTION 254(2) AND THEREF ORE THERE WAS NO QUESTION OF PROVIDING ANY PROVISION OR POWER TO THE INCOME TAX APPELLATE TRIBUNAL TO CONDONE THE DELAY AFTER THE E XPIRY OF SUCH 4 YEARS OF LIMITATION. HOWEVER, IN THE AMENDED PROVIS IONS OF THE ACT UNDER SECTION 254(2), THE LIMITATION FOR RECTIFICAT ION OF MISTAKE M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 9 APPARENT FROM THE RECORD HAS BEEN DRASTICALLY REDUC ED FROM 4 YEARS TO 6 MONTHS AND IN CASE OF A DELAY IN APPLYING FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD, THE PARTY WHO IS AGGR IEVED BY THE ORDER OF THIS TRIBUNAL SUFFERING FROM MISTAKE WILL BE SUBJECTED TO A GREAT HARDSHIP AND DEPRIVATION OF VALUABLE RIGHT OF PURSUING THE APPEAL BEFORE THE TRIBUNAL. BUT IN THE ABSENCE OF A NY PROVISION GIVING POWER OR JURISDICTION TO THIS TRIBUNAL TO CONDONE T HE DELAY IN FILING THE PETITION FOR RECTIFICATION OF THE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCEED STRICTLY AS P ER 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 RECTI FICATION OF MISTAKE CANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLA NEOUS PETITION FILED BY THE ASSESSEE IS FOUND TO BE MAINTAINABLE. THE MI SCELLANEOUS PETITION FILED BY THE ASSESSEE IS BEYOND THE PERIOD OF 6 MONTHS FROM 04.01.2016 AND THEREFORE THE SAME IS BARRED BY LIMI TATION. 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 CANNOT BE SUPPLIED BY US WHEN THERE IS NO AMBIGUITY IN THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF BHARAT PETROLEUM CORPN. LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN PARAS 16 TO 18 AS UNDER: '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETITIONER T HAT THE POWER OF TH E 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 WA S SUBMITTED ON BEHALF OF THE PETITIONER THAT THE APPLICATION UNDER SECTIO N 254(1) OF THE ACT WOULD BE THE ONLY PROVISION UNDER WHICH AN APPLICAT ION COULD BE MADE FOR 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 THERE IS AN ERROR APPARENT ON RECORD AND THE MISCELLANEOU S APPLICATION IS TO M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 10 CORRECT THE ERROR APPARENT FROM THE RECORD. THE CON SEQUENCE OF SUCH RECTIFICATION APPLICATION BEING ALLOWED MAY LEAD TO A FRESH HEARING IN THE MA TTER AFTER HAVING RECALLED THE ORIGINAL ORDER. HOWE VER, THE RECALL, IF ANY, IS ONLY AS A CONSEQUENCE OF RECTIFY ING THE ORIGINAL ORDER. IT IS PERTINENT TO NOTE THAT SECTION 254(2) OF THE ACT DOES NOT PROHIBIT THE RECALL OF AN ORDER. IN FACT THE POWER/JURISD ICTION OF THE TRIBUNAL TO RECALL AN ORDER ON RECTIFICATION APPLICATION MADE U NDER SECTION 254(2) OF THE ACT IS NO LONGER RES INTEGRA . THE ISSUE STANDS COVERED BY THE DECISION OF THE APEX COURT IN ASSTT. CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 WHICH HELD THAT THOUGH THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER, YET IT HAS JURISDICTION TO RECTIFY ANY MISTAKE APPARENT ON THE FACE OF THE RECORD AND AS A CONSEQUENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECAL L ITS ORDER. IN THE ABOVE CASE, BEFORE THE APEX COURT ON OCTOBER 27, 20 00, 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 STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER SECTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATED SEPTEMBER 5, 2001, ALLO WED THE APPLICATION AND HELD THAT THERE WAS A MIST AKE APPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION. ACCORDINGLY, THE TRIB UNAL RECALLED ITS ORDER DATED OCTOBER 27, 2000, FOR THE PURPOSE OF EN TERTAINING THE APPEAL AFRESH. THE REVENUE FILED A WRIT PETITION IN THE GUJARAT HIGH COURT CHALLENGING THE ORD ER 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 APEX COURT WHICH ALSO DISMISSED THE APPEAL OF THE REVENUE. THE APEX COURT OBSERVED THAT THE TRIBUNAL I N ITS ORIGINAL ORDER WHILE DISMISSING THE STOCK EXCHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE B INDING DECISIONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECTED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPRE ME COURT HELD THAT THE RECT IFICATION OF AN ORDER STANDS ON THE FUNDAMENTAL PRI NCIPLE THAT JUSTICE IS ABOVE ALL AND UPHELD THE EXERCISE O F POWER UNDER SECTION 254(2) OF THE ACT BY THE TRIBUNAL IN RECALL ING ITS EARLIER ORDER DATED OCTOBER 27, 2000. THUS, RECALL OF AN ORDER IS NOT BARR ED ON RECTIFICATION APPLICATION BEING MADE BY ONE OF THE PARTIES. IN THESE M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 11 CIRCUMSTANCES, THE APPLICATION WOULD BE AN APPLICAT ION FOR RECTIFICATION OF THE ORDER DATED DECEMBER 6, 2007, AND WOULD STAND GOVERNED BY SECTION 254(2) OF THE ACT. 17. IN THE FA CTS OF THE PRESENT CASE THERE CAN BE NO DENIAL 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 THE SE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICATION WOULD BE UNDER SEC TION 254(2) OF THE ACT. THE RECALL OF AN ORDER WOULD WELL BE A CONSEQU ENCE OF RECTIFYING AN ORDER UNDER SECTION 254(2) OF THE ACT . IN THESE CIRCUMSTANCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE T RIBUNAL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APPELLAN T IS BARRED BY LIMITATION UNDER SECTION 254(2) OF THE ACT AS IT WA S FILED BEYOND A PERIOD OF FOUR YEARS FROM THE ORDER SOUGHT TO BE RE CTIFIED. 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 ASSUME D THAT THE ORDER IN BR EACH OF RULE 24 OF THE TRIBUNAL RULES IS AN VOID OR DER, YET THE SAME WOULD CONTINUE TO BE BINDING TILL IT IS SET ASIDE B Y A COMPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SAD IK V. SANJAY RAJ SUBBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDE R: 'PATENT AND LATENT INVALIDITY IN A WELL KNOWN PASSAGE LORD RADC LIFFE SAID: 'AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQUENCES. IT BEARS NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NECESSARY PROCEEDINGS ARE TAK EN AT LAW TO ESTABLISH THE CAUSE OF INVALIDITY AND TO GET IT QUASHED OR OTHERW ISE UPSET, IT WILL REMAIN AS EFFECTIVE FOR ITS OSTENSIBLE PURPOSE AS T HE MOST IMPECCABLE OF ORDERS.' THIS MUST BE EQUALLY TRUE EVEN WHERE TH E 'BRAND OF INVALIDITY' IS PLAINLY VIS IBLE: FOR THERE ALSO THE ORDER CAN EFFECTIVELY BE RESISTED IN LAW ONLY BY OBTAINING A DECISION OF THE COURT.' FURTHER, THE SUPREME COURT IN SNEH GUPTA V. DEVI SARUP [2009] 16 SCC 194 HAS OBSERVED. 'WE ARE CONCERNED HEREIN WITH THE QUESTIO N OF LIMITATION. T HE COMPROMISE DECREE, AS INDICATED HEREIN BEFORE, E VEN IF VOID WAS M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 12 REQUIRED TO BE SET ASIDE. A CONSENT DECREE AS IS WE LL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SUCH A DECREE MUST BE S ET ASIDE IF IT HAS BEEN PASSED IN VIOLATION OF LAW. FOR THE SAID PURPO S E, THE PROVISIONS CONTAINED IN THE LIMITATION ACT, 1963, WOULD BE APP LICABLE. IT IS NOT THE LAW THAT WHERE THE DECREE IS VOID, NO PERIOD OF LIMITATION SHALL BE ATTRACTED AT ALL.' THEREFORE, IN THIS CASE ALSO THE PERIOD OF FOUR YEARS FROM THE DATE OF ORDER SOUGHT TO BE R ECTIFIED/RECALLED WILL APPLY AS PROVIDED IN SECTION 254(2) OF THE ACT. THIS IS SO E VEN IF IT IS ASSUMED THAT THE ORDER DATED DECEMBER 6, 2006, IS A VOID OR DER. 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 F OR NON-PROSECUTION. QUESTION (B) : THE MISCELLANEOUS APPLICATION FOR RE CALL OF AN ORDER FALLS UNDER SECT ION 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. 20. IN VIEW OF THE REASONS GIVEN HEREINABOVE, WE FIND T HE TRIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS A PPLICATION 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 PERIO D OF LIMITATION AS PROVIDED UNDER SECTION 254(2) AND ARE NOT MAINTAINA BLE. ACCORDINGLY THE SAME IS DISMISSED BEING BARRED BY LIMITATION. M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 13 ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMS TANCES AS DISCUSSED IN FOREGOING PARAS AS WELL AS THE DECISIO N OF THE BANGALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCELLANEOUS P ETITION FILED BY THE REVENUE ON 22.05.2017 IS BEYOND THE PERIOD OF L IMITATION EXPIRED ON 30.11.2016 AND ACCORDING THE SAME IS NOT MAINTAI NABLE. 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, WHERE THERE IS NO PROVISION FOR CONDON ATION OF DELAY FOR FILING OF THE MISCELLANEOUS APPLICATION, THEN THE MISCELLA NEOUS APPLICATION FILED BELATEDLY IS NOT MAINTAINABLE BEING BARRED BY LIMIT ATION PROVIDED UNDER SECTION 254(2) OF THE ACT. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29/01/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 29/01/2021. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. KRISHAN MOHAN GOYAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 2(4), JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) M.A. NO. 71/JP/2020 SH. KRISHAN MOHAN GOYAL, JAIPUR VS. ITO, WARD 2 (4), JAIPUR 14 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 71/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR