ITO, Kota V. RAM RATAN MODI, Kota

MA 93/JPR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 6037 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 21-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: S L PODAR
• Keywords: Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Right to appeal; Tax effect; Time period of passing order; Condonation of delay
• Section: 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, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A NO. 93/JP/2017 (ARISING OUT OF ITA NO. 473/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER, WARD-1(3), KOTA. CUKE VS. SHRI RAM RATAN MODI, PROP. M/S MODI FLOORING STONE COM., MORAK STATION, MORAK, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADZPM3672L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L. PODAR (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A.S NEHRA (J.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/12/2017 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. THIS MISCELLANEOUS PETITION BY THE REVENUE IS DIRE CTED AGAINST THE ORDER DATED 18.12.2015 OF THIS TRIBUNAL. THE REVENU E IS SEEKING RECALLING OF THE IMPUGNED ORDER ON THE GROUND THAT THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER HAD DISMISSED THE APPEAL OF THE DEPARTMENT DUE TO LOW TAX EFFECT I.E. LESS THAN RS. 10,00,000/- HOWEVER, THE TAX EFFECT IN THIS APPEAL OF THE REVEN UE IS MORE THAN RS. M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 2 10,42,227/- IF SURCHARGE AND EDUCATION CESS IS TAK EN INCOME CONSIDERATION. 2. WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. AR OF THE ASSE SSEE HAS RAISED A PRELIMINARY OBJECTION AGAINST THE MAINTAINABILITY O F THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE ON THE GROUND THAT IT IS BARRED BY LIMITATION. THE LD. AR AS CONTENDED THAT AFTER THE AMENDMENT IN THE PROVISIONS OF SECTION 354(2) VIDE FINANCE ACT, 2016 W.E.F. 01.06.2016 THE LIMITATION FOR FILING THE MISCELLANEOUS APPLICA TION FOR RECTIFICATION OF MISTAKE IS PROVIDED AS 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED THE IMPUGNED ORDER WAS PASSED IN THE MONTH OF DECEMBER, 2015 AND DUE TO SUBSEQUENT AMENDMENT W.E. F. 01.06.2016 THE LIMITATION HAS EXPIRED ON 30.11.2016 WHEREAS TH E PRESENT MISCELLANEOUS PETITION HAS BEEN FILED BY THE REVENU E IN THE MONTH OF MAY, 2017 WHICH IS BEYOND THE PERIOD OF LIMITATION AND THEREFORE, NOT MAINTAINABLE. ON THE OTHER HAND, LD. DR HAS SUBMITT ED THAT SINCE THE ORDER OF THE TRIBUNAL WAS PASSED PRIOR TO THE AMEND MENT BY FINANCE ACT, 2016 W.E.F. 01.06.2016 THEREFORE, THE LIMITATI ON AVAILABLE FOR FILING THE MISCELLANEOUS APPLICATION SEEKING RECTIFICATION IS 4 YEARS AS PER THE UN-AMENDED PROVISIONS OF LAW. HE HAS RELIED UPON T HE DECISIONS OF M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 3 HONBLE MADHYA PRADESH HIGH COURT DATED 09.10.2017 IN CASE OF DISTRICT CENTERAL COOPERATIVE BANK LTD. VS. UNION OF INDIA I N WRIT PETITION NO. 4144/2017. THUS, THE LD. DR HAS SUBMITTED THAT THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS WITHIN THE PERIOD OF LIMITATION AS PER UN- AMENDED OF SECTION 254(2) OF THE ACT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. WE NOTE THAT THE PRESENT MISCEL LANEOUS PETITION WAS FILED BY THE REVENUE FOR RECALLING OF THE ORDER DAT ED 18.12.2015 AND THEREFORE, AS PER UN-AMENDED PROVISIONS OF SECTION 254(2) OF THE ACT, THE LIMITATION PERIOD PROVIDED FOR RECTIFICATION OF THE MISTAKE WAS 4 YEARS FROM THE DATE OF ORDER. HOWEVER, THE PROVISIO NS OF SECTION 254(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 PAS SED. 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 PA SSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT 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 ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INC REASING THE M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 4 LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO T HE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : 75 [ 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.] 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 THE APPEAL WITH IN THE SAID PERIOD OF STAY SPECIFIED IN THAT ORDER: PROVIDED FURTHER THAT WHERE SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE SAID PERIOD OF STAY AS SPECIFIED IN THE ORDER OF STAY, THE APPELLATE TRIBUNAL MAY, ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE AND ON BEING SATISFIED THAT THE DEL AY IN DISPOSING OF THE APPEAL IS NOT ATTRIBUTABLE TO THE ASSESSEE, EXTEND THE PERIOD OF STAY, OR PASS AN ORDER OF STAY FOR A FURT HER PERIOD OR PERIODS AS IT THINKS FIT; SO, HOWEVER, THAT THE AGG REGATE OF THE PERIOD ORIGINALLY ALLOWED AND THE PERIOD OR PERIODS SO EXTENDED OR ALLOWED SHALL NOT, IN ANY CASE, EXCEED THREE HUN DRED AND SIXTY-FIVE DAYS AND THE APPELLATE TRIBUNAL SHALL DI SPOSE OF THE APPEAL WITHIN THE PERIOD OR PERIODS OF STAY SO EXTE NDED OR ALLOWED: 80 [ PROVIDED ALSO THAT IF SUCH APPEAL IS NOT SO DISPOSED OF WITHIN THE PERIOD ALLOWED UNDER THE FIRST PROVISO OR THE P ERIOD OR PERIODS EXTENDED OR ALLOWED UNDER THE SECOND PROVIS O, WHICH M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 5 SHALL NOT, IN ANY CASE, EXCEED THREE HUNDRED AND SI XTY-FIVE DAYS, THE ORDER OF STAY SHALL STAND VACATED AFTER THE EXP IRY OF SUCH PERIOD OR PERIODS, EVEN IF THE DELAY IN DISPOSING O F 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 WH ICH THE MISTAKE APPARENT FROM RECORD CAN BE RECTIFIED HAS BEEN REDU CED FROM 4 YEARS 6 MONTHS. THERE IS NO QUARREL ON THE POINT THAT THIS AMENDMENT IN SECTION 254(2) CANNOT BE GIVEN EFFECT RETROSPECTIVE LY SO AS TO TAKE WAY OF RIGHT OF THE PARTIES TO FILE THE APPLICATION OF RECTIFICATION. THE HONBLE M.P. HIGH COURT IN CASE OF DISTRICT CENTRAL COOPERA TIVE 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 AMEND MENT DOES NOT SHOW THAT IT IS APPLICABLE WITH RESPECTIVE EFFE CT, HOWEVER, THE EXISTING RIGHT HAS BEEN EXTINGUISHED WITH RETROSPE CTIVE 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 THE SOME HAS NOT BEEN DONE TILL THE AMENDMENT CAME INTO FORCE EXTINGUISHI NG THE RIGHT TO FILE AN APPEAL. THEREFORE, THE HONBLE HIGH COURT HAS OBSERVED THAT THE AMENDMENT IN THE SAID PROVISIONS IS NOT APPLICABLE WITH RETROSPE CTIVE EFFECT OTHERWISE IT WOULD EXTINGUISH THE RIGHT OF THE APPLICANT WITH RETROSPECTIVE EFFECT. M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 6 HENCE, TO THE EXTENT OF THE APPLICABILITY OF THE AM ENDMENT PROSPECTIVELY WE DO AGREE WITH THE LD. DR, HOWEVER SINCE THE AMEN DMENT 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 PERIOD FOR RECTIFI CATION OF MISTAKE WOULD BE AVAILABLE ONLY UP TO 6 MONTHS FROM THE END OF TH E MONTH IN WHICH THE ORDER WAS PASSED. IN THE CASE IN HAND SINCE THE ORDER WAS PASSED PRIOR TO THE AMENDMENT, THEREFORE, THE SAID PERIOD OF LIMITATION WILL BE AVAILABLE TO THE ASSESSEE FROM THE DATE OF AMENDMEN T 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 IMPUGNED ORDER IS PRIOR TO THE AMENDMENT W.E.F. 01.06.2016 THEN THE LIMITATION PERIOD OF 6 MONTHS WOULD RECKON FRO M 01.06.2016 SO THAT THE RIGHT OF THE APPLICANT IS NOT CURTAIL BY T HE SUBSEQUENT AMENDMENT. WE FURTHER, NOTE THAT THE BANGALORE BENC HES OF THIS TRIBUNAL IN CASE OF SMT. PADMA K. BHAT VS. ACIT 16 6 ITD 172 HAD THE OCCASION TO CONSIDER AN IDENTICAL ISSUE AND ONE OF US THE JUDICIAL 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 MI SCELLANEOUS PETITION ON 10.03.2017 FOR RECALLING OF ORDER OF THE TRIBUNA L DATED 04.01.2016. M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 7 THE PROVISION OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD IS PROVIDED UNDER SECTION 254(2) AS UNDER: '254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS S UCH 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 RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE M ISTAKE 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 INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-S ECTION 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, 199 8, 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 MON THS 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 IS PR OVIDED ONLY FOR 6 MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER 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 254(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 LIMITATION WAS PROVIDED AS 4 YEARS FOR RECTIFICATION OF MISTAKE APPARENT FROM RE CORD AND THEREFORE THERE WAS NO PROVISION IN THE INCOME-TAX ACT FOR CO NDONATION OF ANY DELAY OF ANY PETITION FOR RECTIFICATION OF MISTAKE FILED AFTER THE SAID PERIOD OF 4 YEARS. EVEN OTHERWISE, THE LIMITATION O F 4 YEARS WAS MORE THAN THE LIMITATION FOR FILING OF THE SUIT AND AS P ER THE GENERAL STATUTE I.E., THE LIMITATION ACT WHERE THE LIMITATION FOR I NSTITUTION OF SUIT IS PROVIDED AS 3 YEARS ONWARDS FROM THE DATE OF CAUSE OF ACTION AROSE AND M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 8 THEREFORE THERE WAS NO PROVISION EVEN IN THE LIMITA TION ACT FOR CONDONATION OF DELAY IN RESPECT 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 PROVIDED IN THE INCOME-TAX ACT. T HIS PRINCIPLE IS WELL SETTLED THAT WHEN THERE IS A PROVISION IN SPECIAL S TATUTE, THEN THE GENERAL STATUTE IS NOT APPLICABLE TO THE EXTENT OF THE PROVISION PROVIDED IN THE SPECIAL STATUTE. WE FIND THAT PRIOR TO THE A MENDMENT THE LIMITATION FOR RECTIFICATION OF MISTAKE WAS 4 YEARS AS PROVIDED UNDER SECTION 254(2) AND THEREFORE THERE WAS NO QUESTION OF PROVIDING ANY PROVISION OR POWER TO THE INCOME TAX APPELLATE TRIB UNAL TO CONDONE THE DELAY AFTER THE EXPIRY OF SUCH 4 YEARS OF LIMITATIO N. HOWEVER, IN THE AMENDED PROVISIONS OF THE ACT UNDER SECTION 254(2), THE LIMITATION FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD H AS BEEN DRASTICALLY REDUCED FROM 4 YEARS TO 6 MONTHS AND IN CASE OF A D ELAY IN APPLYING FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD, THE PARTY WHO IS AGGRIEVED BY THE ORDER OF THIS TRIBUNAL SUFFERING F ROM MISTAKE WILL BE SUBJECTED TO A GREAT HARDSHIP AND DEPRIVATION OF VA LUABLE RIGHT OF PURSUING THE APPEAL BEFORE THE TRIBUNAL. BUT IN THE ABSENCE OF ANY PROVISION GIVING POWER OR JURISDICTION TO THIS TRIB UNAL TO CONDONE THE DELAY IN FILING THE PETITION FOR RECTIFICATION OF T HE MISTAKE APPARENT FROM THE RECORD, THE TRIBUNAL HAS NO OPTION BUT TO PROCE ED STRICTLY AS PER 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 RECTIFICATION OF MISTAKE CANNOT BE ENTERTAINED UNTIL AND UNLESS THE MISCELLANEOUS PETI TION FILED BY THE ASSESSEE IS FOUND TO BE MAINTAINABLE. THE MISCELLAN EOUS PETITION FILED BY THE ASSESSEE IS BEYOND THE PERIOD OF 6 MONTHS FR OM 04.01.2016 AND THEREFORE THE SAME IS BARRED BY LIMITATION. 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 CANN OT BE SUPPLIED BY US WHEN THERE IS NO AMBIGUITY IN THE PROVISIONS OF SEC TION 254(2) OF THE ACT. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF B HARAT PETROLEUM CORPN. LTD. V. ITAT [2013] 359 ITR 371/[2014] 42 TAXMANN.COM 25 , WHILE DEALING WITH AN IDENTICAL ISSUE HAS HELD IN P ARAS 16 TO 18 AS UNDER: M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 9 '16. IT WAS NEXT CONTENDED ON BEHALF OF THE PETITIONER T HAT THE POWER OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT IS ONLY TO RECTIFY AN ERROR APPARENT FROM THE RECORD. IT DOES NO T EMPOWER THE TRIBUNAL TO RECALL ITS EARLIER ORDER DATED DECEMBER 6, 2007, FOR WHICH THE MISCELLANEOUS APPLICATION WAS FILED ON AU GUST 6, 2012. IT WAS SUBMITTED ON BEHALF OF THE PETITIONER THAT T HE APPLICATION UNDER SECTION 254(1) OF THE ACT WOULD BE THE O NLY PROVISION UNDER WHICH AN APPLICATION 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 MISCELLANEOUS APPLICATION IS TO CORRECT THE ERROR APPARENT FROM THE RECORD. THE CONSEQUENCE OF SUCH R ECTIFICATION APPLICATION BEING ALLOWED MAY LEAD TO A FRESH HEARI NG IN THE MATTER AFTER HAVING RECALLED THE ORIGINAL ORDER. HO WEVER, THE RECALL, IF ANY, IS ONLY AS A CONSEQUENCE OF REC TIFYING 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 PO WER/JURISDICTION OF THE TRIBUNAL TO RECALL AN ORDER ON RECTIFICATION APPLICATION MADE UNDER SECTION 254(2) OF THE ACT IS NO LONGER RES IN TEGRA . 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 HEL D THAT THOUGH THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER, YET IT HAS JURISDICTION TO RECTIFY A NY MISTAKE APPARENT ON THE FACE OF THE RECORD AND AS A CONSEQU ENCE, THEREFORE, THE TRIBUNAL CAN EVEN RECALL ITS ORDER. IN THE ABOVE CASE, BEFORE THE APEX C OURT ON OCTOBER 27, 2000, THE TRIBUNAL DISMISSED THE APPEAL OF STOCK EXCHANGE HOLDING THAT IT WAS NOT ENTITLED TO EXEMPTION UNDER SECTION 11 READ WITH SE CTION 12 OF THE ACT. ON NOVEMBER 13, 2000, THE STOCK EXCHANGE FILED A RECTIFICATION APPLICATION UNDER S ECTION 254(2) OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL BY ITS ORDER DATED SEPTEMBER 5, 2001, ALLOWED THE APPLICATION AND HELD THAT THERE WAS A M ISTAKE APPARENT ON THE RECORD WHICH REQUIRED RECTIFICATION . ACCORDINGLY, THE TRIBUNAL RECALLED ITS ORDER DAT ED OCTOBER 27, 2000, FOR THE M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 10 PURPOSE OF ENTERTAINING THE APPEAL AFRESH. THE REVE NUE FILED A WRIT PETITION IN THE GUJARAT HIGH COURT CHALLENGING THE ORDER DATED SEPTEMBER 5, 2001. THE ABOVE CHALLENGE BY THE REVEN UE WAS TURNED DOWN BY THE GUJARAT HIGH COURT. THE REVENUE CARRIED THE MATTER IN APPEAL TO THE APEX COURT WHICH ALSO DISMI SSED THE APPEAL OF THE REVENUE. THE APEX COURT OBSERVED THAT THE TRIBUNAL IN ITS ORIGINAL ORDER WHILE DISMISSING THE STOCK EX CHANGE (ASSESSEE'S) APPEAL OVERLOOKED THE BINDING DECIS IONS OF THE JURISDICTIONAL HIGH COURT. THIS MISTAKE WAS CORRECT ED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. THE SUPRE ME COURT HELD THAT THE RECTIFICATION OF AN ORDER STANDS ON THE FU NDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL AND UPHELD THE EXERCI SE OF POWER UNDER SECTION 254(2) OF THE ACT BY THE TRIBUNAL IN RECALLING ITS EARLIER ORDER DATED OCTOBER 27, 2000. THUS, RECALL OF AN ORDER IS NOT BARRED ON RECTIFICATION APPLICATION BEING MADE BY ONE OF THE PARTIES. IN THESE CIRCUMSTANCES, THE APPLICATION WOULD BE AN APPLICATION FOR RECTIFICATION OF THE ORDER DATED DE CEMBER 6, 2007, AND WOULD STAND GOVERNED BY SECTION 254(2) OF THE A CT. 17. IN THE FACTS OF THE PRESENT CASE THERE CAN BE NO DE NIAL THAT THE ORDER DATED DECEMBER 6, 2007, SUFFERS FROM AN ERR OR APPARENT FROM THE RECORD. THE ERROR IS IN HAVING IGNORED THE MANDATE OF RULE 24 OF THE TRIBUNAL RULES WHICH REQUIRED THE TR IBUNAL TO DISPOSE OF THE MATTER ON THE MERITS AFTER HEARING T HE RESPONDENTS. IN THESE CIRCUMSTANCES, AN APPLICATION FOR RECTIFICAT ION WOULD BE UNDER SECTION 254(2) OF THE ACT. THE R ECALL OF AN ORDER WOULD WELL BE A CONSEQUENCE OF RECTIFYI NG AN ORDER UNDER SECTION 254(2) OF THE ACT. IN THESE CIRCUMSTA NCES, WE FIND NO REASON TO INTERFERE WITH THE ORDER OF THE TRIBUN AL HOLDING THAT THE MISCELLANEOUS APPLICATION FILED BY THE APPELLANT 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. M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 11 18. BEFORE CONCLUDING, WE WOULD LIKE TO MAKE IT CLEAR T HAT AN O RDER PASSED IN BREACH OF RULE 24 OF THE TRIBUNAL RULES, IS AN IRREGULAR ORDER AND NOT A VOID ORDER. HOWEVER, EVEN IF IT IS ASSUMED THAT THE ORDER IN BREACH OF RULE 24 OF THE TRIBUNAL RULE S IS AN VOID ORDER, YET THE SAME WOULD CONTINUE TO BE BINDING TI LL IT IS SET ASIDE BY A COMPETENT TRIBUNAL. IN FACT, THE APEX COURT IN THE SULTAN SADIK V. SANJAY RAJ SUBBA REPORTED IN [2004] 2 SCC 377 OBSERVED AS UNDER: 'PATENT AND LATENT INVALIDITY IN A WELL K NOWN PASSAGE LORD RADCLIFFE SAID: 'AN ORDER, EVEN IF NOT MADE IN GOOD FAITH, IS STILL AN ACT CAPABLE AT LEGAL CONSEQUENCES. IT BEAR S NO BRAND OF INVALIDITY UPON ITS FOREHEAD. UNLESS THE NECESSARY PROCEEDINGS ARE TAKEN AT LAW TO ESTABLISH THE CAUSE OF INVALIDITY A ND TO GET IT QUASHED OR OTHERWISE UPSET, IT WILL REMAIN A S EFFECTIVE FOR ITS OSTENSIBLE PURPOSE AS THE MOST IMPECCABLE OF ORDERS .' THIS MUST BE EQUALLY TRUE EVEN WHERE THE 'BRAND OF INVALIDITY ' IS PLAINLY VISIBLE: FOR THERE ALSO THE ORDER CAN EFFECTIVELY B E RESISTED IN LAW ONLY BY OBTAINING A DECISION OF THE COU RT.' 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. THE COMPROMISE DECREE, AS INDICATED HER EIN BEFORE, EVEN IF VOID WAS REQUIRED TO BE SET ASIDE. A CONSEN T DE CREE AS IS WELL KNOWN, IS AS GOOD AS A CONTESTED DECREE. SUCH A DECREE MUST BE SET ASIDE IF IT HAS BEEN PASSED IN VIOLATIO N OF LAW. FOR THE SAID PURPOSE, THE PROVISIONS CONTAINED IN THE LIMIT ATION ACT, 1963, WOULD BE APPLICABLE. IT IS NOT THE LAW THAT WHER E 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 DA TE OF ORDER SOUGHT TO BE RECTIFIED/RECALLED WILL APPLY AS PROVI DED IN SECTION 254(2) OF THE ACT. THIS IS SO EVEN IF I T IS ASSUMED THAT THE ORDER DATED DECEMBER 6, 2006, IS A VOID ORDER. 19 WE SHAL L NOW ANSWER THE QUESTIONS ARISING IN THIS CASE AS RAISED BY US IN PARAGRAPH 4 ABOVE AS UNDER : M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 12 QUESTION (A) : NO. THE TRIBUNAL HAS NO POWER IN TER MS OF RULE 24 OF THE TRIBUNAL RULES TO DISMISS AN APPEAL BEFORE I T FOR NON - PROSECUTION. QUESTION (B) : THE MISCELLANEOUS APPLICATION FOR RE CALL OF AN ORDER FALLS UNDER SECTION 254(2) OF THE ACT AND NOT UNDER SECTION 254(1) OF THE ACT. QUESTION (C) : DOES NOT ARISE IN VIEW O F OUR RESPONSE TO QUERY (B) ABOVE. 20. IN VIEW OF THE REASONS GIVEN HEREINABOVE, WE FIND T HE TRIBUNAL WAS CORRECT IN DISMISSING THE MISCELLANEOUS APPLICA TION BY ITS ORDER DATED APRIL 10, 2013, AS BEING BEYOND THE PER IOD 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 PERIOD OF LIMI TATION AS PROVIDED UNDER SECTION 254(2) AND ARE NOT MAINTAINABLE. ACCO RDINGLY THE SAME IS DISMISSED BEING BARRED BY LIMITATION. ACCORDINGLY, IN VIEW OF THE ABOVE FACTS AND CIRCUMS TANCES AS DISCUSSED IN FOREGOING PARAS AS WELL AS THE DECISION OF THE B ANGALORE BENCHES OF THE TRIBUNAL (SUPRA) THE MISCELLANEOUS PETITION FIL ED BY THE REVENUE ON 22.05.2017 IS BEYOND THE PERIOD OF LIMITATION EXPIR ED ON 30.11.2016 AND ACCORDING THE SAME IS NOT MAINTAINABLE. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DI SMISSED. M.A. NO. 93/JP/2017 ITO VS. SHRI RAM RATAN MODI, KOTA. 13 IN ORDER PRONOUNCED IN THE OPEN COURT ON 27/12/20 17 SD/- SD/- FOE FLAG ;KNO FOT; IKWY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/12/2017. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- INCOME TAX OFFICER, WARD-1(3), KOTA. 2. IZR;FKHZ@ THE RESPONDENT- SHRI RAM RATAN MODI, PROP. M/S MODI FLOORING STONE COM., MORAK STATION, MORAK, KOTA. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 93/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR