THE ACIT, CIR.-1, RAJKOT V. SHRI BHAGWANJI L. DELWADIA, RAJKOT

MA 8/RJT/2022

AI Insights

The case involves Bhagwanjibhai N. Delwadia, the appellant, who filed a Miscellaneous Application against the order of the Income Tax Appellate Tribunal dated 23.01.2009, which dismissed his Cross Objection as time-barred. The original dispute pertained to a block assessment period from 01.04.1988 to 16.02.1999. The appellant argued that the Tribunal's finding of an 8 to 9 months delay was incorrect, asserting that the delay was only about 6.5 months. The Tribunal, however, found the delay to be substantial and not adequately explained, leading to the dismissal of the application. The Tribunal also addressed the procedural aspects under sections 254(2) and 255(5) of the Income Tax Act, 1961, and Rule 12 of the Appellate Tribunal Rules, 1963, emphasizing the importance of adhering to procedural timelines and the need for sufficient cause in explaining delays.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 473079 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-08-2024
• Assessment Year: misc
• Appeal Filed On: 16-07-2022
• Other Referred Cases: DCIT vs. Airport Authority of India, PCIT vs. Chartered Logistics Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH J. SHAH
• Assessee Lawyers: SHRAMDEEP SINHA
• Keywords: Condonation of delay; Set aside; Opportunity of being heard; Additional evidence; Retrospective amendment; Period of limitation; Block assessment; Time period of passing order
• Section: 250; 263; 254(2); 153; 13; 191; 264; 260A; 153(2A); 101

Judgement Text

" Page | 1 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER AND SHRI DINESH MOHAN SINHA, JUDICIAL MEMBER Miscellaneous Application No.8/RJT/2022 (arising out of Cross Objection No.1/Rjt/2004) (Block-AYs. 01.04.1988 to 16.02.1999) (Physical Hearing) Bhagwanjibhai N. Delwadia, 25, Kamal Duplex, Kathwada Road, Naroda, Ahmedabad Vs. The ACIT, Circle – 1, Rajkot \u0001थायीलेखासं./जीआइआरसं./PAN/GIR No.: s (Appellant) (Respondent) Appellant by :Shri Manish J. Shah, AR Respondent by :Shri Shramdeep Sinha, CIT-DR Date of Hearing : 07/08/2024 Date of Pronouncement : 16/10/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: By way of the captioned miscellaneous application, the assessee has sought to point out that a mistake apparent from record within the meaning of section 254(2) of the Income Tax Act, 1961(in short ‘the Act’) has crept in the order of the Tribunal dated 23.01.2009, vide Cross Objection No.1/Rjt/2004 (Relate to IT(SS)A No.106/Rjt/2003), relating to block assessment period from 01.04.1988 to 16.02.1999. 2. The case of the assessee in this Miscellaneous Application, which is filed before the Bench,(issue raised by the assessee in this miscellaneous application), is as follows: “1. The present Miscellaneous Application is filed seeking restoration of cross appeal/cross objection preferred by the applicant being CO No.1/Rjt/2004 in Page | 2 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia response to IT(SS)A No.106/Rjt/2003 for Block Assessment Period 01.04.1988 to 16.02.1999, on the following grounds. 2. The applicant herein is the original appellant, who has preferred Cross Objection before the Hon'ble Income Tax Appellate Tribunal against the order of learned C.I.T. (Appeals)-3, Ahmedabad for Block Assessment Period 01.04.1988 to 16.02.1999, raising various grounds of appeal. 3. It is most humbly stated that the Hon'ble Tribunal had dismissed the said CO as being time barred by limitation, vide common order dealing with the Departmental appeal, as well as, Cross Objection filed by the Applicant dated 23.01.2009. It is most humbly submitted that, while dismissing the Cross Objection filed by the Applicant, the Hon'ble Tribunal had stated that the Cross Objection is out of time by 8 to 9 months and since the delay is considerable and no valid reasons have been given by the assessee, the CO is dismissed as time barred by limitation. 4. It is humbly submitted that, the order of C.I.T.(Appeals)-3, Ahmedabad, from which the above referred CO had arisen, was passed on 31.07.2003. It is further humbly submitted that, against the said order of CIT(A)-3, Ahmedabad, the appeal bearing IT(SS)A No.106/Rjt/2003 was filed by the learned ACIT, Circle-1, Rajkot on 08.10.2003. 5. It is humbly submitted that the Appellant, along with Form No.36A had also filed an application for condonation of delay explaining the delay which occurred in filing the Cross Objection. It was stated in the said application that, the Appellant had received a copy of appellate order from the office of CIT(A) on 20.11.2003, and therefore, even if an appeal would have been filed by the Appellant against the order of C.I.T.(Appeals)-3 it would have been within prescribed time. 6. In view of the above stated correct facts of the case, the finding of the Hon'ble Tribunal that, the CO is out of time by 8 to 9 months is factually wrong. It is humbly submitted that, even the period from the date of the order of CIT(A)-3, Ahmedabad i.e. 31.07.2003 to the date of filing of the Cross Objection i.e. 20.01.2004 amounts to approximately 6- 1/2 months. 7. In view of the above mistake in the order of the Hon'ble Tribunal, the said order is required to be restored and rectified for consideration of correct facts of the case. It is most humbly submitted that, the Hon'ble Tribunal has inherent powers to rectify arithmetical mistake at any time to advance the ends of justice. 8. In view of the above, it is most humbly prayed that the above mentioned Cross Objection may kindly be restored for consideration of the correct facts of the case, for which act of kindness the applicant shall for ever pray and remain grateful.” 3. Shri Manish J. Shah, Learned Counsel for the assessee, submitted that during the proceeding before the Tribunal, the assessee had filed the Page | 3 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia condonation petition, requesting the Bench to condone the delay in filing the Cross Objection, which is reproduced below: “I was residing at 901, Hilton Tower, Bansi Park, Amin Marg, Rajkot. My aforesaid address was on the record of the Income Tax Department. Therefore the copy of Form no. 36 and Grounds of Appeal filed by the Department were served on the aforesaid address. I did not have any income earning activity at Rajkot for quite some time and I was therefore finding it increasingly difficult to feed my family. Under the circumstances a relative residing at Ahmedabad obliged me by offering a job. As a result I have shifted with family to Ahmedabad. In view of the above, I could get the envelope containing copy of form no. 36 and Grounds of Appeal filed by the department through my neighbour and could arrange to forward the same to my Tax Consultant M/s Sarda & Sarda through my brother in law's son. This took away quite some time. Moreover M/s Sarda & Sarda prepared cross objections and forwarded the same to me for my signature at Ahmedabad and I returned the same to them at Rajkot after signing. This again took time. The cross objections were presented before the Registrar on 9th January, 2004 however the same were not accepted on the ground that it does not contain application for condonation of delay. Hence, I am filing cross objections along with this application for condonation of delay. I respectfully submit that delay in filing cross objections is unintentional and is caused by circumstances beyond my control. I may further state that I have received my copy of Appellate Order from the office of the CIT(A) only on 20th November, 2003 and therefore an appeal from my side if filed will be in time. However, I am serving for a remuneration of Rs.3,600/- per month only at Ahmedabad out of which I have to pay rent for house and support my family. I am therefore not having funds to pay fees for Tribunal Appeal and therefore unable to file appeal.” 4. Learned Counsel for the assessee, contended that the impugned order passed by the Tribunal, in assessee`s case under consideration, was u/s 255(5) of the Act, therefore limitationimposed u/s 254(2) is not applicable to such order. Therefore, Ld. Counsel stated that when the Tribunal order was passed on incorrect factual premises and such factual premises is very foundation of such order, such order must be set aside and apparent mistake in the order of the Tribunal may be corrected. The Learned Counsel for the assessee, took us through the order of the Tribunal dated 23.01.2009, Page | 4 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia wherein the Tribunal has adjudicated the cross objection of the assessee, [ CO.NO.1/RJT/2004] as follows: “ 4.The assessee has filed CO, on 20.01.2004, i.e. it is out of time by 8 to 9 months. The assessee has filed application for condonation of delay. However, since the delay is considerable and no valid reasons, has been given the CO, of the assessee, is dismissed, as being time barred by limitation.” Learned Counsel for the assessee stated that the finding of the Hon'ble Tribunal that, the CO is out of time by 8 to 9 months is factually wrong. As the delay in filing the cross objection is less than 6.50 (six and half months), from the date of the order of the commissioner (appeals) and not 8 to 9 months, as, held by the Tribunal, hence it is apparent mistake in the order of the tribunal, in mentioning the number of months of delay, in the order of the Tribunal. 5. Learned Counsel for the assessee, submitted a chart before the Bench, stating the various dates and then computed the delay in filing cross objection by the assessee, and stated that cross objection filed by the assessee is barred by limitation by 31 days only,( one Month only), whereas, the Tribunal has stated in its order, the delay of 8 to 9 months, which is factually incorrect, therefore, entire cross objection of the assessee, may recalled and should be heard on merit, afresh. This way, the Ld. Counsel for the assessee contended that miscellaneous application filed by the assessee should be allowed and cross objection (CO) of assessee should be restored for hearing, on merit, for that ld.Counsel relied on the following judgments: 1. DCIT vs. Airport Authority of India – (2013) 143 ITD 319 (Delhi-Trib) 2. W.P.(C) No. 3162/2013 in case of Airport Authority of India vs. CIT 3. PCIT vs. Chartered Logistics Ltd. – (2017) 250 Taxman 385 (Guj) Page | 5 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia 6. On the other hand, Learned Commissioner of Income-tax – Departmental Representative (Ld. CIT-DR) for the Revenue submitted that first of all, the miscellaneous application filed by the assessee is barred by limitation by 12 years, the Tribunal has passed the order in IT(SS)A No.106/Rjt/2003 and CO No.1/Rjt/2004, on dated 23.01.2009, whereas the assessee has filed this miscellaneous application before this Tribunal on 12.07.2022, which is almost after 12 years (approx.), therefore, the delay in filing the miscellaneous application should not be condoned, as there is no condonation petition has been filed by the assessee. On the contents of the cross objection(CO), the Ld. CIT-DR also stated that no valid reason has given by the assessee, in the miscellaneous application.The Tribunal order dated 23.01.2009, passed in IT(SS)A No.106/Rjt/2003 has been litigated by the Revenue before High Court and before High Court, the assessee did not become the party and did not argue that it wants to restore the cross objection(CO) raised by it. The assessee has neither submitted, the cross objection, on time nor this miscellaneous application to restore the cross objection, was filed on time. In both the cases, there is huge mistake on the part of the assessee. The Tribunal does not have power to condone the delay, when the miscellaneous application is filed late by the assessee. The assessee had not decided to go to the High Court and after 12 years (approx.)he has filed the miscellaneous application when the matter was remitted back by the Hon’ble Gujarat High Court to the file of theTribunal (ITAT) to adjudicate the issue afresh. Only on that point of time,when the matter was remitted back by the Hon’ble Gujarat High Court to the file of the Tribunal, the assessee filed thismiscellaneous application before this Tribunal(ITAT), which shows clearly bad intention of the assessee, to defraud the revenue.Hence, such miscellaneous application filed after 12 years should not be entertained, and it should be dismissed. Page | 6 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia 7. Learned DR for the Revenue, also filed the written submission, which are reproduced below: “(1)Assessee vide affidavit dtd.01.07.2022 has filed a Miscellaneous application alongwith a condonation of delay application with a prayer that there is a mistake apparent on record in para. 4 of Ld.ITAT's order in CO No.1/RJT/2004 dated 23.01.2009. (2) That as per provisions of section 254(2) of I.T.Act, MA can be filed within 6 months of the ITAT's order dated 23.01.2009, i.e. till 31.07.2009 assuming order was received in by 31 January 2009. That the current MA filed on 12.07.2022 cannot be condoned as it is hopelessly time barred, and, also it has been interpreted that Ld.ITAT does not have power of condonation u/s.254(2). (MP No.325/Bang/2018; MA No.12 to 14/Nag/2019; (2024) 162 Taxmann.com 354 (Bombay); (2006) 152 Taxmann.com 377 (P&H) (within 4 year's provision); (2023) 153 Taxmann.com 202 (Indore-Trib). 3. Notwithstanding, the CO No.1/RJT/2004 had attained 'quietus' after the assessee did not challenge its rejection by Ld.ITAT in Hon. High Court of Gujarat, or did not file MA petition u/s.254(2) 'within' limitation period. As per facts, only the Revenue's appeal in IT(SS)A No.106/RJT/2003, which was decided against the department was taken on appeal to Hon. High Court, wherein the presence of assessee was noted, and in context of para.9,15,19,27,31,35,50,60, etc. of Ld.ITAT's order, the matter has been restored for fresh adjudication at the level of Ld.ITAT. As such when CO No.1/RJT/2004 has not been the subject matter before Hon.High Court of Gujarat, it is erroneously written in the note sheet relied upon by Ld.AR that 'due to lack of clarity both CO of the assessee, as well as, the appeal of the department have been revived by virtue of Hon. High Court's order. 4.The paying capacity or the emotions attached with the assessee’s present contention cannot be the guiding factor of an order which is to be made as per law. 5.It is prayed to dismiss the MA filed by assessee, primarily because Ld.ITAT does not have power to condone the delay in MA petition filed by the assessee, as we as because, the CO 1/RJT/2004 was not revived by Hon.High Court of Gujarat.” 8. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.For the sake of clarity and also being pertinent, we reproduce the following provisions of the Income tax Act 1961, which were referred by the ld Counsel for the assessee, in his arguments: (i) Section 254(2) of the Income tax Act: Time limit for rectification of mistake. Page | 7 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia “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: 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.]” (ii) Section 255(5) of the Income tax Act: Power of the Tribunal to regulate its own procedure: “(5) Subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.” (iii) Rule 12 of Appellate Tribunal Rules, 1963: Rule 12 of Income Tax Appellate Tribunal Rules, deals with rejection or amendment of Memorandum of appeal, which reads as follows: “12 Rejection or amendment of memorandum of appeal: The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or returnit for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under rule 7” 9. We note that Learned Counsel for the assessee, heavily relied on the decision of Co-ordinate Bench of ITAT Delhi, in the case of airport authority of India, 143 ITD 319 (Delhi-trib), the findings of the same is reproduced below: “The Department has filed this miscellaneous application on 26/07/2011 for recall of Tribunal's order dated 01/02/2007 dismissing the Department's appeal in accordance with the directions of Hon'ble Supreme Court for want of COD Approval. The Department has filed this miscellaneous application on the ground Page | 8 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia that the Hon'ble Supreme Court of India vide their order dated 17/02/2011, in the case of Electronics Corporation of India Ltd. v. Union of India [2011] 332 ITR 58 (SC), have recalled all their orders on the issue of requirement of COD approval to Public Sector Undertakings & Government Department for initiating legal proceedings against each other. 2. Ld. Counsel, Shri Ved Jain for the assessee opposed the miscellaneous application on the ground that it is barred by limitation in terms of section 254(2) as ft has been filed on 26/07/2011 i.e. beyond four years from the date of the impugned order of the ITAT viz 01/02/2007. In this regard ld. Counsel relied on the decision of Special Bench in the case of Arvindbhai H. Shah v. Asst. Asstt. CIT [2004] 91 ITD 101 (Ahd.) (SB) , wherein it has been held that no order can be amended through rectification u/s 254(2), after four years from the date of the order. Ld. Counsel further submitted that the decision of Hon'ble Supreme Court in the case of Electronics Corpn. of India Ltd. (supra) is applicable for appeals filed after 17/02/2011 i.e. its applicability is prospective. 3. Ld. DR has filed written submissions which are reproduced hereunder: - \"1. An order passed in accordance with the directions of the Hon'ble Supreme Court would not survive if the Hon'ble Supreme Court has withdrawn the directions so issued: Hon'ble Supreme Court has vide order in ONGC v. CCE [2004] 6 SCC 437 dated 7.1.1994 directed that, \"...in the absence of clearance from the Committee of Secretaries (CoS) (later on known as COD), any legal proceedings will not be proceeded with. This was subject to the rider that appeals and petitions filed without such clearance could be filled to save limitation. It was, however, directed that the needful should he done within one month from such filing, failing which the mattes would not proceeded with.\" Now the Hon'ble Supreme Court vide their latest decision dated 17.02.2011 in the case of M/s Electronic Corporation of India Ltd. v. Union of India [2011] 332 ITR 0058 have recalled their aforesaid order dated 07.01.1994 and all other orders on this issue. The impugned order dated 01.02.2007 of the Hon'ble ITAT was passed in accordance with the direction of the Hon'ble Supreme Court as given in their order in ONGC v. CCE [2004] 6 SCC 437 dated 7.1.1994 and other relevant orders. Now since all these orders of the Hon'ble Supreme Court stand recalled, the impugned order dated 01.02.2007 would also not survive as it was based on such recalled orders. Even the Hon'ble ITAT has also granted liberty to the Revenue to seek adjudication of the appeal of merits if the COD approval if furnished after praying for a recall of this order. The present situation is akin to a situation as mentioned in section 153(3) of the I.T. Act, 1961, where it has been provided that assessment, re-assessment re-computation in any case in order to give effect to any finding or direction contained in an order of any court in a proceeding other than by way of appeal or reference under the act my subject to provisions of section 153(2A) provides that in order to give effect to orders passed u/s 254, 263 or 264 setting aside or cancelling an assessment, fresh assessment may be made any time before the expiry of nine months from the end of the financial year in which such order has been received by the Chief Commissioner of Income Tax. In the instant case the revenue have filed the MA on 18.07.2011, i.e. in less than six months from the issue of order of Page | 9 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia Hon'ble Supreme Court on 17.02.2011, in the case of ONGC v. CCE [2004] 6 SCC 437. Therefore, this is my humble prayer that the present MA may kindly be recalled as it is not bound by the limitation provided in section 254(2) of the Income Tax Act, 1961. 2. The impugned order cannot be considered at order passed u/s 254(1) of the Income Tax Act 1961: The impunged order is an order massed under Rule 12 of the Appellate Tribunal Rules, 1963 rejecting the Department appeal for want of COD approval. Provisions of Rule 12 of the Appellate Tribunal Rules, 1963 are extracted below for ready reference: \"Rejection or amendment of memorandum of appeal. 12. The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return if for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under rule 7.\" The Hon'ble Tribunal vide the impugned order rejected the appeal of the Department without adjudicating it on merits and also granted liberty to seek adjudication of the appeal on merits if the COD approval is furnished after praying for a recall of the impugned order. An order u/s 254(1) is passed by the Hon'ble Tribunal after an appeal, which is not deficient, after hearing both the parties to the appeal an opportunity of being heard. Therefore, the impugned order is not governed by the limitation of four years form the date of the order as prescribed u/s 254(2) of the I.T. Act. Recalling of the impugned order will constitute admission of a belated appeal after the expiry of the relevant period referred to in section 253(1) & (2) of the IT Act as the Department was prevented by sufficient cause for not presenting the above appeal within the prescribed time. Therefore, the present MA is an appeal to the Hon'ble Tribunal to condone the delay in terms of section 253(5) of the IT Act in the light of the decision of Hon'ble Supreme Court in the case of Electronics Corporation of India [2011] 332 ITR 0058.\" 4. Thus, in sum and substance, ld. DR has advanced following contentions. (1) On the analogy of provisions contained u/s 153(3) & 153(2A), since department has filed miscellaneous application within nine months from the date of the order of Hon'ble Supreme Court recalling its earlier order, therefore, the said order has to be given effect and, accordingly, the order of Tribunal should be recalled; (2) The impugned order of Tribunal was not an order u/s 254(1) but an order under Rule 12 of Income Tax Appellate Tribunal Rules. The submission is that since the requisite condition of obtaining COD permission never existed on account of the decision of Hon'ble Supreme Court being recalled, the amendment/rectification directed by Tribunal in the form of obtaining permission of COD became infructuous on 17/02/2011. Therefore, the appeal should be admitted for final adjudication on merits as a belated appeal. 5. Ld. Counsel for the assessee, in the rejoinder, relied on the decision of Hon'ble Allahabad High Court dated 10th October, 2012, in the case of J.B. Roy v. DCIT, wherein it has been held that a retrospective amendment does not affect completed matters. Page | 10 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia 6. We have considered the submissions of both the parties and have perused the record of the case. 7. Admittedly, the present petition has been filed by the department after the expiry of four years from the date of the impugned order of Tribunal. The Tribunal's order is reproduced hereunder:- ORDER Per P.M. Jagtap. A.M. This appeal is filed by the Revenue against the order dated 25.11.2005 of learned CIT(A)-IV, New Delhi relating to A.Y. 1996-97. 2. Since the assessee is a public sector undertaking, the approval of Committee of Secretaries on Disputes (COD) is required for prosecution of the appeal as per the decision of the Supreme Court. The Revenue has not produced the approval of the COD. 3. In the absence of COD approval, the appeal filed by the Revenue is dismissed. The Revenue would be at liberty to seek adjudication of the appeal on merits if the COD approval is furnished after praying for a recall of this order. 4. In the result, the appeal fried by the Revenue is dismissed. Decision pronounced in the open court after the hearing on 1st February, 2007.'' 8. Thus, Tribunal dismissed the appeal as the appeal could not be proceeded with in the absence of COD approval in view of the decision of Hon'ble Supreme Court in the case of ONGC v. CCE [2004] 65 SCC 437. However, it had given liberty to revenue to seek adjudication of the appeal on merits if the COD approval was obtained after praying for recall of the order. 9. Hon'ble Supreme Court in the case of Electronics Corporation of India Ltd. (supra) inter alia, observed as under - 'One cannot possibly expect timely clearance by the Committee on Disputes In such cases, grant of clearance to one and not to the other may result in generation of more and more litigation. The mechanism has outlived its utility. In the changed scenario indicated above, we are of the view that time has come under the above circumstances to recall the directions of this court in its various orders reported as (i) ONGC v. CCE [1995] Supp. 4 SCC 541 dated October 11, 1991: (ii) ONGC v. CCE [2004] 6 SCC 437 dated January 7, 1994: and (iii) ONGC v. City and Industrial Development Corporation [2007] 7 SCC 39 dated July 20, 2007. \"Thus, it is evident that on account of undue delay in grant of COD permission, Hon'ble Supreme Court recalled its order, inter alia, observing that grant of clearance to one and to the other may result in generation of more and more litigation. Therefore, it cannot be inferred that the applicability of Hon'ble Supreme Court decision is prospective only. Hon'ble Supreme Court declares the law as it then was. It is well settled principle of law that recall of an order makes the earlier order non est. We, therefore, are not inclined to accept the plea of ld. Counsel for the assessee that the decision of Hon'ble Supreme Court will be Page | 11 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia applicable only to appeals filed after the date of decision of Hon'ble Supreme Court. 10. Admittedly, even till the judgment of Hon'ble Supreme Court dated 17/02/2011, no COD approval could be obtained by the department. Therefore, now the contention of department is that the COD approval was not at all required and hence the impugned order of Tribunal is to be recalled. In order to appreciate the controversy, we have to first examine the true import of appeal before the Tribunal. In this regard we have to refer to the General Provisions relating to appeals as contained in section 107 of Code of Civil Procedure which are reproduced hereunder - 107. \"(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case: (c) to frame issues and refer them for trial, (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdictional in respect of suits instituted therein.\" This implies that normally the case should be decided after considering the merits so that finality is achieved. This is the reason that in Order XL1 to CPC under different Rules, power is given to Court to reject the appeal on preliminary issues but at the same time under Rule 19 specific power is given for Re-admission of appeal. This Rule reads as under:- Re-admission of appeal dismissed for default. 19. 'Where an appeal is dismissed under rule 11 sub-rule (2), or rule 17 or rule 18. the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.\" Thus, the primary intention of Legislature, in incorporating the provisions of appeal, is to ensure that rights and liabilities of parties are finally settled Accordingly, Courts have been empowered to pass certain interim orders also in order to sub serve the ends of justice by finally adjudicating the rights and liabilities of parties by deciding appeals on merits. If rights and liabilities stand finally determined by efflux of time, the limitation provided in a statute will operate. However, where only interim order is passed on certain procedural matters, the limitation provided in a statute will not operate so as to denude the final determination of rights and liabilities. From the above, it is evident that the appellate authority is required to adjudicate the appeal on merits and if the appellate authority has not adjudicated the appeal on merits then it passes such interim orders which may facilitate the decision of appeal on merits Therefore, the Page | 12 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia interim orders can be recalled at any stage of proceeding if they have outlived their utility. Almost identical provisions have been incorporated in the Income Tax Act for appeals to be decided by Tribunal. Appeals to the Income-tax Appellate Tribunal are governed by specific provisions contained in the Income Tax Act in section 253(3). As per section 253(3), appeal is to be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be. The respondent has been given right of filing cross objection within 30 days of the receipt of the notice. Section 254 deals with orders of Appellate Tribunal and as per section 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 think fit. Section 254(2) gives power to Tribunal to amend its order passed under sub-section (1) with a view to rectifying any mistake apparent from the record within four years from the date of the order. Section 255 governs the Procedure of Appellate Tribunal and sub- section (5) to this section empowers the Tribunal to regulate its own procedure. Accordingly ITAT (Appellate) Tribunal Rules have been framed. These Rules empower the Tribunal to pass necessary procedural interim orders in the discharge of its functions to ensure that ultimate function of deciding appeal is effectively achieved. The object of laying down procedures is to sub serve the ends of justice and for the effective implementation of substantive law. 11. Ld. DR has referred to Rule 12 of Income Tax Appellate Tribunal Rules which deal with rejection or amendment of Memorandum of appeal. This Rule is identical to Order XL1R.3 of CPC. The rejection or amendment of Memorandum of Appeal contemplated under the Rule is primarily an interim order and not an order u/s 254(1) because this order is not an order on appeal but on Memorandum of Appeal. As per this Rule, it is only, the amended Memorandum of Appeal, which is to be considered for adjudication and the date of presentation of the Memorandum of Appeal is to be treated as the effective date of presentation of the appeal. The orders contemplated u/s 254(1) are such orders which adjudicate the appeal which is analogous to section 107 of CPC. The 'appeal' contemplated u/s 254 is such appeal which is free from all defects and can be taken up for decision on merits. 12. This issue can be looked at from a different angle also. In the present case, it is true that COD did not grant its permission even till the decision of Hon'ble Supreme Court recalling its earlier directions and four years period had elapsed since the passing of the impugned order by Tribunal. But let us take an hypothetical case where Tribunal dismissed an appeal for want of COD approval and after four years of the Tribunal's order, COD approval was granted. Further this situation arose prior to the decision of Hon'ble Supreme Court recalling its earlier orders. Under such circumstances, whether the limitation imposed u/s 254(2) would have operated or not, is the most crucial aspect to be considered for deciding the present miscellaneous application. In our opinion, after the COD approval was given, the Tribunal could not in the interest of justice, refused to recall its order even after four years from the date of the impugned order. If that be so, we fail to understand how the present scenario is different from the one noted earlier. Were, in view of Hon'ble Supreme Court decision, since the COD approval was not at all required, therefore, it has to be inferred that the department wrongly approached the COD for its approval. The reliance placed by ld. Counsel for the assessee on the decision of Hon'ble Allahabad High Court is not applicable to the present case because in that case Hon'ble Allahabad High Court had dismissed the appeal following the decision of Full Bench in the case of CIT v. Mohd. Page | 13 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia Farooq [2009] 317 ITR 305/184 Taxman 191 , wherein it was held that the High Court had no power to condone delay in filing the appeal u/s 260A. Section 260 (2A) was inserted by the Finance Act, 2010 with retrospective effect from 01/10/1998 which bestowed upon the High Court the power to condone delay. Pursuant to the said retrospective amendment, the assessee filed a review petition for restoration of appeal. This review petition was dismissed observing as under; - \"Though s. 260A (2A) has been inserted retrospectively w.e.f. 01 10.1998 by the Finance Act, 2010, the fact remains that cases already settled before the said amendment cannot be reopened as per the ratio laid down in Babbu Ram v. C.C. Jacob AIR (1999) SC I845, where it was observed that the prospective declaration of law is a devise innovated by the apex court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. In matters, where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law. The amendment is applicable to future cases to avoid uncertainly as per the ratio laid down in M, A. Murthy v. State of Karnataka 264 ITR 1 SC. where it was observed that prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by the Court while superseding the law declared by it earlier. It is not possible to anticipate the decision of the highest court or an amendment and pass a correct order in anticipation as per the ratio laid down in Commissioner Of Income-Tax v. Schlumberger Sea Co. Inc. 264 ITR 331 (Cal.) . Therefore, the amendment introduced in s. 260-A(2A) has the perfect only on pending and future cases. On the date when the appeal was dismissed on the ground of limitation, there was no discretion with the court to condone the delay. A discretion has come to the court by virtue of the amendment by inserting s 260-A (2A). The appeal was (rightly) dismissed as per the then law and the subsequent amendment is not applicable as the matter has already attained finality. 13. This decision cannot be applied to the present case because the Tribunal itself had put a rider in the order that if the COD approval was obtained then department could move for recalling of its order. It would be travesty of justice if Tribunal after putting such rider refuses to recall its order on the ground of limitation imposed under section 254(2). The position would be different where prior to recalling of decision in the case of ONGC (supra) by Hon'ble Supreme Court on 17/02/2011, COD approval was denied. This situation will squarely be covered by the decision of Hon'ble Allahabad High Court in J B. Roy's case. The present situation is akin to a procedural amendment in a statute which is retrospective in nature and is applicable to all pending cases. 14. We are in agreement with the department's contention that the dismissal of appeal was effectively under the first limb of Rule 12 of ITAT Rules which are primarily procedural in nature giving power to Tribunal to pass interim orders in order to regulate its procedure for imparting justice. The interim orders passed under Rule 12 are therefore, not the orders as contemplated u/s 254(1) but order under Rule 12 read with section 255(5). Therefore, the limitation u/s 254(2) is not applicable to such orders. Page | 14 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia 15. One more interesting aspect to be considered in this context is whether appeal could be preferred before Hon'ble High Court u/s 260A. In our opinion since no party could be said to be aggrieved by the impugned order of Tribunal, therefore, they could not file appeal before High Court. 16. In view of above discussion, we held as under: - (1) The limitation imposed u/s 254(2) is not applicable because the Tribunal's order was not u/s 254(1) but under section 255(5) read with Rule 12 of ITAT Rules; (2) Where COD approval is denied prior to the decision of Hon'ble Supreme Court dated 17/02/11 recalling its order in the case of ONGC (supra), the order of Tribunal dismissing the appeal prior to COD approval cannot be recalled;1 (3) Where COD approval was awaited on 17/02/11, the orders of Tribunal dismissing the appeal for want of COD approval have to be recalled particularly when Tribunal had put a rider for recalling of its order on getting COD approval. 17. Accordingly, the miscellaneous application filed by the department is allowed.” 10. Considering the provisions of Section 254(2 ) of the Income tax Act and provisions of Section 255(5) of the Income tax Act, and provisions of Rule 12 of Appellate Tribunal Rules, 1963, we find that in this miscellaneous application, there are three issues before us, Viz: (1) As per Learned Counsel for the assessee, the order was passed by the Tribunal under section 255(5) of the Act, therefore provisions of section 254(2) of the Act, is not applicable to the assessee, under consideration, (2) The cross objection filed by the assessee is barred by limitation by 31 days only,( one Month only), whereas, the Tribunal has stated in its order, the delay of 8 to 9 months, which is factually incorrect. (3) Whether miscellaneous application filed by the assessee,( requesting to recall the cross objection No.01/RJT/2004) before this Tribunal, after expiry of a period of 13 years can be admitted? That is, the Tribunal order was passed on 23.01.2009, whereas the assessee filed the miscellaneous application before this Tribunal on 12.07.2022, ( almost, after expiry of a period of 13 years, (approx.) Page | 15 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia 11. Now we shall deal above questions one by one as follows. (i) We do not agree with Learned Counsel for the assessee, to the effect that order was passed by the Tribunal under section 255(5) of the Act, therefore provisions of section 254(2) of the Act, is not applicable to the assessee, under consideration. We note that Tribunal had passed the order dated 23.01.2009, under sub-section (1) of section 254 of the Income tax Act, wherethe Appellate Tribunal, may after giving both the parties to the appeal, an opportunity of being heard, and pass such orders, thereon, as it thinks fit. We note that Section 255(5) of the Income tax Act, talks about Power of the Tribunal to regulate its own procedure. It states that Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings. Therefore, we do not agree with learned Counsel for the assessee, to the effect that Tribunal has passed the order in the assessee`s case under consideration, under section 255(5) of the Act, rather, Tribunal has passed the order, in the assessee`s case under consideration, under section 254 (1) of the Act. We note that Rule 12 of Income Tax Appellate Tribunal Rules, deals with rejection or amendment of Memorandum of appeal,if it is not in the prescribed form. Therefore, we find that section 255(5) of the Act, and Rule 12 of Income Tax Appellate Tribunal Rules, deal with procedure of the Income Tax Appellate Tribunal, and therefore, these provisions are not relevant to adjudicate the issue involved in the assessee`s miscellaneous application. Learned Counsel for the assessee, heavily relied on the decision of Coordinate Bench of ITAT Delhi, in the case of airport authority of India(supra) wherein it was held that the limitation imposed u/s 254(2) of Page | 16 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia the Act, is not applicable because the Tribunal's order was not u/s 254(1) but under section 255(5) read with Rule 12 of ITAT Rules; where COD approval is denied prior to the decision of Hon'ble Supreme Court dated 17/02/11 recalling its order in the case of ONGC (supra), the order of Tribunal dismissing the appeal prior to COD approval cannot be recalled; where COD approval was awaited on 17/02/11, the orders of Tribunal dismissing the appeal for want of COD approval have to be recalled particularly when Tribunal had put a rider for recalling of its order on getting COD approval. Therefore, we find that in the case of airport authority of India(supra), the facts are totally different and moreover Tribunal had put a rider for recalling of its order on getting COD approval, which is not the assessee`s case, under consideration. (ii) The cross objection filed by the assessee is barred by limitation by 31 days only, (one Month only), whereas, the Tribunal has stated in its order, the delay of 8 to 9 months, which relates to length of delay. The length of delay, is not material, what is material is to explain the “sufficient cause”, which the assessee has failed to do so. We find that the assessee even failed to explain the delay of 31 days, (one Month only), in the petition for condonation of delay. No doubt, it is a typo graphical error on the part of the tribunal, in coating the number of days of delay, however, the facts remain that assessee, even not able to explain the delay of 31 days. After going through the petition for condonation of delay, we noticed that assessee had stated a cooked story in the petition of condonation of delay, which is not supported by any evidence. Hence even delay of 31 days cannot be condoned.The important and relevant part of the petition for condonation of delay, filed by the assessee, is reproduced below for ready reference: “I did not have any income earning activity at Rajkot for quite some time and I was therefore finding it increasingly difficult to feed my family. Under the Page | 17 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia circumstances a relative residing at Ahmedabad obliged me by offering a job. As a result I have shifted with family to Ahmedabad. In view of the above, I could get the envelope containing copy of form no. 36 and Grounds of Appeal filed by the department through my neighbour and could arrange to forward the same to my Tax Consultant M/s Sarda & Sarda through my brother in law's son. This took away quite some time. Moreover M/s Sarda & Sarda prepared cross objections and forwarded the same to me for my signature at Ahmedabad and I returned the same to them at Rajkot after signing. This again took time.” We note that reasons mentioned by the assessee, in the above petition are not supported by any evidence. How the Tribunal come to know that assessee did not have any income earning activity at Rajkot for quite some time and assessee was therefore finding it increasingly difficult to feed his family. What are the evidences for these activities, everybody can frame these reasons.Who was that relative residing at Ahmedabad who obliged assessee, even name of the Relative is not mentioned in the affidavit.The assessee stated that he could get the envelope containing copy of form no. 36 and Grounds of Appeal filed by the department through his neighbour and could arrange to forward the same tohis Tax Consultant M/s Sarda & Sarda through his brother in law's son, cannot be believed.On which date M/s Sarda & Sarda prepared cross objections and forwarded the same to assessee, etc are the cooked story, which is not supported, even by evidence, hence cannot be relied. Therefore, we find that assesseefailed to explain the ‘sufficient- cause’ in the petition for condonation of delay, therefore we note that there is no infirmity in the decision of the Tribunal.So far, quoting of number of months and days, in the decision of the Tribunal, are concerned, it is a typographical error on the part of the Tribunal, which can be rectified by issuing a corrigendum, provided the assessee makes a separate application for that purpose. Corrigendum means an error to be corrected, in a printed order of Tribunal, without changing the ratio of the decision of the Tribunal. Page | 18 Miscellaneous Application No.8/RJT/2022 Bhagwanjibhai N. Delwadia (iii) Before this Tribunal, the said miscellaneous application is filed by the assessee, (requesting to recall the cross-objection No.01/RJT/2004), after expiry of a period of 13 years(aprox). The Tribunal had passed the order on 23.01.2009, whereas the assessee filed the miscellaneous application before this Tribunal on 12.07.2022, (almost, after expiry of a period of 13 years- approx.). The assessee, did not file petition for condonation of delay, to condone such huge delay, therefore, we dismiss the assessee`s Miscellaneous Application. 12. In the result, Miscellaneous Application filed by the assessee is dismissed. Order is pronounced in the open court on 16/10/2024 Sd/- Sd/- (DINESH MOHAN SINHA) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot \u0011दनांक/ Date:16/10/2024 Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr. CIT 5. DR/AR, ITAT, Rajkot 6. Guard File // True Copy // By Order Assistant Registrar/Sr. PS/PS ITAT, Rajkot "