9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (4) TMI 1557 - AT - Income TaxRectification of mistake - period of limitation to file the rectification application - deduction claimed u/s 80IC to the extent of 100% on account of substantial expansion carried out by the assessee denied - Held that - The position is settled by the vaious Courts of law including that of the Hon ble Gujarat High Court in Peaterplast Synthetics (P) Ltd Vs. CIT 2015 (2) TMI 864 - GUJARAT HIGH COURT ) and Liladhar T Khushlani Vs. Commissioner of Customs 2017 (2) TMI 200 - GUJARAT HIGH COURT , holding that the relevant date has to be taken as the date of dispatch / receipt of the copy of the order and not the date of passing of the order. Since as on both the dates i.e. date of dispatch as well as dated of receipt , the application of the assessee would be deemed to be filed within the l imitation period, hence, we leave the quest ion of law open as to whether the date of dispatch of order or the date of receipt of copy of the order by the concerned party is to be taken as date of commencement of limitation period. Though the operative part of the order may be in the knowledge of the assessee, however, whether there is any mistake apparent on record in the contents of the order , it can be not iced only after going through the contents of the order. The order in this case admittedly was dispatched on 29.6.2017, even if that is taken the date of communication, the application of the assessee can be safely said to have been filed within the period of limitation. This issue is accordingly decided in favour of the assessee Deduction claimed u/s 80IC to the extent of 100% on account of substantial expansion carried out by the assessee - Case of Division Bench of the ITAT in the case of Hycron Electronics Vs. ITO 2015 (6) TMI 725 - ITAT CHANDIGARH now covered by the subsequent decision of of Himachal Pradesh in M/s Stove kraft India Vs. CIT 2017 (12) TMI 69 - HIMACHAL PRADESH HIGH COURT wherein, the decision of the Tribunal in the case of Hycron (supra) has been set aside wherein held only 25% of deduction during the present year because the assessee has already availed the period of full deduction @ 100% in the earlier five years. DR is fair enough to concede this factual matrix. It is settled law that in the case of law declared / any interpretation made by the higher court , it is to be taken as such interpretation was the right interpretation of those provisions as on the date of their incorporation in the statute. In view of this, any contrary interpretation made by this Tribunal would constitute mistake apparent on record. - decided in favour of assessee.
Issues:
1. Calculation of limitation period for filing rectification applications under section 254(2) of the Income-tax Act, 1961. 2. Interpretation of the term "date of order" in relation to the commencement of the limitation period. 3. Mistake apparent on record in the Tribunal's orders and the subsequent recall and restoration of the appeals. Issue 1: Calculation of limitation period for filing rectification applications under section 254(2) of the Income-tax Act, 1961: The applicant assessee filed Misc. Applications to recall the Tribunal's orders dated 24.5.2017 and 19.5.2017. The Registry noted the applications as time-barred by five days. The assessee argued that the date of order should be considered as the date of communication of the order, not the date of pronouncement. Citing relevant provisions of section 254(2) of the Act, the assessee contended that the date of dispatch or receipt of the order should determine the limitation period. The Counsel relied on decisions of High Courts and Tribunal Benches, emphasizing that the date of order should be construed as the date of communication or knowledge of the order. The Tribunal acknowledged these arguments, leaving the question open regarding the commencement of the limitation period. Issue 2: Interpretation of the term "date of order" in relation to the commencement of the limitation period: The Departmental Representative argued that the order was pronounced in open court, providing actual and constructive knowledge to the assessee. However, the Tribunal noted that the date of commencement of the limitation period should be based on the date of dispatch or receipt of the order, not the date of passing. Referring to precedents, the Tribunal concluded that the application was filed within the limitation period, irrespective of the date considered. Issue 3: Mistake apparent on record in the Tribunal's orders and the subsequent recall and restoration of the appeals: The assessee sought to recall and amend the Tribunal's orders based on a mistake apparent on record regarding the deduction claimed under section 80IC of the Act. The Counsel argued that subsequent decisions by the Jurisdictional High Court set aside the Tribunal's earlier decision, constituting a mistake apparent on record. The Tribunal agreed with this argument, recalling the orders and restoring the appeals to their original position in line with the High Court's decision. As the issue was squarely covered by the High Court's ruling, both appeals were decided accordingly. This comprehensive analysis covers the calculation of the limitation period, the interpretation of the term "date of order," and the identification of a mistake apparent on record leading to the recall and restoration of the appeals.
|
