SHRI KANHAIYA LAL SARAF,AMBIKAPUR (CG) V. THE INCOME TAX OFFICER, AMBIKAPUR, AMBIKAPUR (CG)

MA 34/RPR/2024

AI Insights

The case involves a miscellaneous application filed by Shri Kanhaiya Lal Saraf against an order passed by the Income Tax Appellate Tribunal in a previous appeal (ITA No. 172/RPR/2017). The application was filed to recall the Tribunal's earlier decision, citing a delay in the acceptance of an application under the Vivad Se Vishwas Scheme by the Ld. PCIT, Raipur. The Tribunal found the application to be time-barred, as it was filed 1053 days late, and referenced a judgment by the Hon'ble High Court of Punjab & Haryana, which emphasized the strict adherence to the statutory time limit for filing rectification applications under Section 254(2).

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 469812 (ITAT-RAIPUR)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2025
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Other Referred Cases: Raja Malwinder Singh Vs. Union of India
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRIYANKA PATEL
• Assessee Lawyers: G.S. AGRAWAL
• Keywords: Opportunity of being heard; Period of limitation
• Section: 254(2)

Judgement Text

"आयकर अपीलȣय अͬधकरण Ûयायपीठ रायपुर मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER M.A. No. 34/RPR/2024 [Arising out of ITA No. 172/RPR/2017] Ǔनधा[रण वष[ / Assessment Year : 2010-11 Shri Kanhaiya Lal Saraf Sadar Road, P.O. Ambikapur, Dist. Sarguja (C.G.) PAN: APEPS2292D ……….. आवेदक/Applicant बनाम / V/s. The Income Tax Officer Ward-Ambikapur (C.G.) ….…Ĥ×यथȸ / Respondent Assessee by : Shri G.S. Agrawal, CA Revenue by : Dr. Priyanka Patel, Sr. DR सुनवाई कȧ तारȣख / Date of Hearing : 07.02.2025 घोषणा कȧ तारȣख / Date of Pronouncement : 10.02.2025 2 MA No.34/RPR/202024 आदेश / ORDER PER RAVISH SOOD, JM The present miscellaneous application filed by the assessee is directed against the order passed by the Tribunal in ITA No. 172/RPR/2017, dated 02.07.2021. 2. Shri G.S. Agrawal, Ld. Authorized Representative (for short ‘AR’) for the assessee, at the threshold of hearing of the application, submitted that though the captioned application has been filed beyond the stipulated time period as contemplated u/s. 254(2) of the Income Tax, 1961 (for short ‘the Act’), but the same in all fairness be admitted and the order passed by the Tribunal disposing of the appeal passed in ITA No.172/RPR/2017, dated 02.07.2021 be recalled. For the sake of clarity, the contents of the application filed by the assessee on 09.01.2025 are culled out as under: “1. That for Assessment Year 2010-11 the Order of the Hon'ble ITAT is dated 02.07.2021 in Appeal No. ITA 172/RPR/2017. 2. That the cause of action arose when an application filed by the Applicant under the second Vivad se Vishwas Scheme i.e., 2024 before the Ld. PCIT, Raipur and it was rejected on 28.11.2024. Copy of this rejection Order under the Direct Tax Vivad Se Vishwas Scheme, 2024 is enclosed at Page No. 8 Submitted that grievance of the Appellant arose on 28.11.2024 when above Order was passed by the Ld. PCIT. 3. Widest power with ITAT — Sec. 254(1) 3 MA No.34/RPR/202024 Submitted respectfully that as per Sec. 254(1) there are widest powers to the Income Tax Appellate Tribunal wherein the Tribunal can pass Order as it thinks fit. \"Thinks fit\" confirms very e jurisdiction enabling the Appellate Authority to take any view. 4. Prayed to kindly remove the grievance of the Appellant. He has come forward to opt for Vivad Se Vishwas Scheme earlier in 2020 and now in 2024 to avoid prolonged litigation.” 3. Per contra, Dr. Priyanka Patel, Ld. Sr. Departmental Representative (for short, ‘DR’), submitted that as the captioned application involves a delay of 1053 days, therefore, the same is liable to be dismissed as not maintainable. 4. We have heard the Ld. Authorized Representatives of both the parties on the aforesaid application filed by the assessee. We find that the captioned application has been filed by the assessee beyond the stipulated time period contemplated u/s. 254(2) of the Act. For the sake of clarity, Section 254(2) of the Act is culled out as under: “254(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: 4 MA No.34/RPR/202024 [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.]” 5. Considering the aforesaid facts, we are of the view that as the Tribunal unlike as in case of an appeal, does not have any power to condone the delay involved in a miscellaneous application filed under sub-section (2) of Section 254 of the Act, therefore, the captioned application filed by the assessee beyond the stipulated time period is not maintainable. Our aforesaid view is fortified by the judgment of the Hon’ble High Court of Punjab & Haryana in the case of Raja Malwinder Singh Vs. Union of India (2005) 278 ITR 568 (P&H) (which though was passed referring to the prescribed time period of 4 years as was earlier available, and had been vide the Finance Act, 2016 w.e.f.01.06.2016 substituted by a period “six months”). For the sake of clarity, the observation of the Hon’ble High Court are culled out as under: “7. The above observations are apt in the present context. In discerning the correct interpretation, the purpose for which the provision was brought in namely, to lay down the outer limit, within which the order could be modified, cannot be lost sight of. In our view, the provision of period of limitation under Section 254(2) of the Act cannot be reduced to one of ornamental existence through the interpretative process, as pleaded by learned Counsel for the petitioner. 8. In our opinion, therefore, an application for rectification of mistake in an order passed by the Tribunal has to be filed within 4 years from the date of the order and not at any time. 5 MA No.34/RPR/202024 Any other interpretation, in our view, would lead to absurdity and cannot therefore be accepted. The aforementioned circular of the Board is of no avail of the assessee, inasmuch as it only seeks to remove the difficulties, which an assessee or the revenue may face on account of non-disposal of an application for rectification filed within the period of four years. The circular clearly stipulates that the application for rectification under Section 154, pari materia to Section 254(2). of the Act has to be filed within the statutory time limit of four years. In fact, the circular also goes to show that the Assessing Officer of the Tribunal, as the case may be, assuming that it was applicable to applications filed under Section 254(2) of the Act, has no jurisdiction to amend the order after the expiry of four years. 9. For the view, we have taken, it is unnecessary to deal with the ingenious argument advanced by learned Counsel for the assessee with regard to the significance of 'comma', appearing in the section after the expression \"Tribunal may\". 10. For the foregoing reasons, the writ petition being devoid of any merit, is dismissed, but with no order as to costs.” 6. Accordingly, we are of the view that the power to condone the delay with the Tribunal can only be exercised if it is specifically provided in the statute itself. As observed by us hereinabove, the Tribunal is vested with the power to condone the delay with regard to appeals and cross-objections only, if it is satisfied about the sufficiency of reasons about such delay as enshrined in clause (5) of section 253 of the Act, but no such express power are vested with it to condone the delay involved in filing of a miscellaneous application u/s. 254(2) of the Act. Accordingly, the captioned application filed by the assessee being barred by limitation is dismissed in terms of our aforesaid observations. 6 MA No.34/RPR/202024 7. Resultantly, the miscellaneous application filed by the assessee is dismissed in terms of our aforesaid observations. Order pronounced in open court on 10th day of February, 2025. Sd/- Sd/- ARUN KHODPIA RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायपुर/ RAIPUR ; Ǒदनांक / Dated : 10th February, 2025 ***SB, Sr. PS आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The Pr. CIT, Bilaspur (C.G) 4. ͪवभागीय ĤǓतǓनͬध, आयकर अपीलȣय अͬधकरण, रायपुर बɅच, रायपुर / DR, ITAT, Raipur Bench, Raipur. 5. गाड[ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलȣय अͬधकरण, रायपुर / ITAT, Raipur. "