THE ITO, TIRUR V. .M/S. THE PALLIKKAL SERVICE CO-OP BANK LTD, MALAPPURAM

MA 213/COCH/2021

AI Insights

The case involves the Income Tax Officer, Ward - 3, Tirur as the applicant and Pallikkal Service Co-op. Bank Ltd. as the respondent. The Revenue filed a Miscellaneous Application seeking recall of an earlier Tribunal order that allowed a deduction under section 80P(2) of the Income Tax Act, 1961. The Revenue argued that the Tribunal's decision was contrary to a law laid down by the Kerala High Court. However, the application was filed significantly later than the statutory six-month period allowed for such actions, leading to the issue of whether the Tribunal could condone the delay. The Tribunal concluded that it did not have the authority to condone the delay, referencing various precedents and the specific wording of the Income Tax Act.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 31153 (ITAT-COCHIN)
• Duration Of Justice: 5 year(s) 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 30-09-2019
• Other Referred Cases: Chirakkal Service Co-operative Bank Ltd. v. CIT [2016] 384 ITR 490 (Ker), Nityananda M. Joshi vs. Life Insurance Corporation of India, AIR 1970 SC 209, CIT vs. Western India Engineering Co. Ltd., 77 ITR 165, Comm. of Agrl. I.T. vs. Thalayar Rubber Industries, 131 ITR 162, Insp. Asst CIT vs. Kedar Nath Jhunjhunwalla, 133 ITR 746
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: RISHAL
• Keywords: Condonation of delay; Period of limitation
• Section: 254(2); 69

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH (Through Virtual Court) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI PRAKASH CHAND YADAV, JM MA No. 213/Coch/2021 (Arising out of ITA No. 439/Coch/2021) Assessment Year: 2012-13 The Income Tax Officer Ward - 3, Tirur .......... Applicant Vs. Pallikkal Service Co-op. Bank Ltd. Pallikkal P.O., Malappuram [PAN: AABAP2889A] .......... Respondent Applicant by: Smt. Leena Lal, Sr. D.R. Respondent by: Shri Rishal, Advocate Date of Hearing: 22.11.2024 Date of Pronouncement: 09.12.2024 O R D E R Per: Inturi Rama Rao, AM This Miscellaneous Application is filed by the Revenue seeking recall of the order passed by this Tribunal dated 06.01.2017 on the ground that the impugned order passed by this Tribunal allowing the deduction u/s. 80P(2) of Income Tax Act, 1961 (hereinafter \"the Act\") is contrary to the law laid down by the Hon'ble Kerala High Court in the case of Chirakkal Service Co-operative Bank Ltd. v. CIT [2016] reported in 384 ITR 490 (Ker). 2 MA No. 213/Coch/2021 Pallikkal Service Co-op. Bank Ltd. 2. At the outset, we find that the order passed by this Tribunal was received by the Assessing Officer/Department on 31.01.2017 and the above captioned Miscellaneous Application was filed by the Revenue before this Tribunal 30.09.2019. In terms of provisions of section 254(2) of the Income Tax Act, 1961 ('the Act'), the Tribunal was vested with the power to rectify any mistake apparent from the record or amend any order passed by it under the provisions of section 254(1) of the Act, if such mistakes are brought to the notice of the Tribunal either by the assessee or by the Department within the period of six months from the end of the month in which the order of the Tribunal is passed. Now, it is a settled position of law that the term \"six\" months from the end of the month in which the order was passed had been interpreted to mean that six months from the end of the month in which the order was received by the assessee or by the Assessing Officer/Department, as the case may be. In the present case, the Assessing Officer had received the impugned order of the Tribunal on 31.01.2017, therefore, the Assessing Officer is required to move application u/s 254(2) of the Act on or before 31.07.2017, whereas, the Assessing Officer filed the above captioned Miscellaneous Application before this Tribunal on 30.09.2019. Thus, there is a delay of more than 25 months. Therefore, the question to be answered is that whether the Tribunal, while exercising the power vested under the provisions of section 254(2) can condone the delay occurred in filing the Miscellaneous Applications. A mere perusal of provisions of section 254(2), it would reveal that the Legislature has not vested the Tribunal with the power to condone the delay in filing the Miscellaneous Application/Rectification Application u/s 254(2) of the Act. The scheme of the 3 MA No. 213/Coch/2021 Pallikkal Service Co-op. Bank Ltd. Act would disclose that the Legislature had deliberately excluded the application of the principles underlying section 5 and 14 of the Limitation Act in relation to the provisions of section 254(2) of the Income Tax Act. However, the Legislature had vested the power to condonation of delay in relation to the provisions of section 249 and section 254 of the act. Thus, the very fact that the Legislature had provided for a power to condonation of delay in relation to the provisions of section 249 and section 254 of the Act shows that the Legislature had consciously excluded the power of Tribunal to condone the delay in relation to the provisions of section 254(2) of the Act. In this connection, we would like reference to the order of the Hon'ble Supreme Court in the case of Nityananda M. Joshi vs. Life Insurance Corporation of India, AIR 1970 SC 209 held that in view of section 4 & 5 of the Limitation Act, it would be clear that the scheme of the Act is that it only deals with applications to courts and the Labour Court is not a court within the meaning of the Limitation Act, and, therefore, an application u/s 33C(2) cannot be held to be barred under Article 137, insofar as the claim was for a period beyond three years. 3. It is settled position of law that in the absence of any statutory provisions, no power exist in the authority to condone the delay. It is also equally settled position of law that the provisions of section 5 of the Limitation Act have not application to the proceedings before the Tribunal. In the case of CIT vs. Western India Engineering Co. Ltd., 77 ITR 165, the Division Bench of the Hon'ble Gujarat High Court has held that the Appellate Tribunal under Section 66(1) of the Income Tax Act, 1961 is not a court but is merely a tribunal exercising the judicial power of the State. As the provisions of the Limitation 4 MA No. 213/Coch/2021 Pallikkal Service Co-op. Bank Ltd. Act are not intended to be made applicable to proceedings before authorities other than courts governed by the Code of Civil Procedure or the Code of Criminal Procedure, Section 5 of the Limitation Act, will not apply to applications made to the Appellate Tribunal and, therefore, the Tribunal has no power to condone delay in filing reference application under Section 66(1) of the Income Tax Act, 1961. 4. In Comm. of Agrl. I.T. vs. Thalayar Rubber Industries, 131 ITR 162 a Full Bench of the Hon'ble Kerala High Court has held that Section 69 of the Kerala Agricultural Income Tax Act, 1950, indicates that provisions of sections 4 to 24 of the Limitation Act are not attracted to proceedings under the Act and the Tribunal has no jurisdiction to condone delay in filing an application for reference under Section 60(1) of the said Act. 5. In Insp. Asst CIT vs. Kedar Nath Jhunjhunwalla, 133 ITR 746 a Division Bench of the Hon'ble Patna High Court has held that Section 29(2) of the Limitation Act will apply to appeals and applications filed under a special law only where the scheme of the special law does not exclude its application. Neither the provision of Section 5 nor that of Section 12(2) of the Limitation Act will apply to appeals filed under Section 269H of the Income Tax Act, 1961. 6. On the conspectus of the decisions referred to above and the their ratios, it would be clear that the Tribunal constituted under the provisions of Income Tax Act, 1961 is not a Court but a Tribunal unless there is express power conferred by the said Act to condone the delay or exclude any period of limitation, the Tribunal would not be clothed with the power to condone the delay. In the light 5 MA No. 213/Coch/2021 Pallikkal Service Co-op. Bank Ltd. of above settled legal position, the submissions of the ld. Sr. DR that the delay in moving the Miscellaneous Petitions can be condoned by the Tribunal is rejected. 7. Thus, the Miscellaneous Application filed by the assessee u/s 254(2) is barred by limitation, cannot be entertained. 8. In the light of the above discussions, the above captioned Miscellaneous Application filed by the Revenue stands dismissed. Order pronounced in the open court on 9th December, 2024 Sd/- Sd/- (PRAKASH CHAND YADAV) JUDICIAL MEMBER (INTURI RAMA RAO) ACCOUNTANT MEMBER Cochin, Dated: 9th December, 2024 n.p. Copy to: 1. The Applicant 2. The Respondent 3. The Pr. CIT concerned 4. The Sr. DR, ITAT, Cochin 5. Guard File By Order Assistant Registrar ITAT, Cochin "