2016 (9) TMI 1479 - AT - Income Tax

Delay in filling of Miscellaneous application u/s 254(2) - assessee could not attend on the date of hearing because his mother was not well - miscellaneous application is filed after 4 years and 78 days - Held that - As gone through the record filed along with the miscellaneous application assessee has not filed any medical certificate in support of his claim that his mother was ill. The assessee has not filed any documentary evidence to show that he has made any attempt to file the miscellaneous application before the Tribunal. As per the Limitation Act, the assessee is obliged to explain each and every day s delay in filing the miscellaneous application before the Tribunal. So many times that it is the duty of the assessee to explain each and every day s delay in filing the miscellaneous application. Here in the instant case, there is a delay of more than 4 years and the assessee has utterly failed to explain the same on day to day basis. We are, therefore, of the considered opinion that the Tribunal has no jurisdiction to entertain this application. We further find that under the guise of this miscellaneous application, the assessee wants the Tribunal to review its order which is not permitted under the law - No merit in this miscellaneous application filed by the assessee and dismiss the same. - Decided against assessee.

Summary

Issues Involved:
1. Filing of miscellaneous application under section 254(2) of the Income Tax Act, 1961.
2. Justification for non-attendance at the date of hearing.
3. Timeliness and maintainability of the miscellaneous application.
4. Tribunal's power to review its own order.
5. Explanation for delay in filing the miscellaneous application.

Issue-wise Detailed Analysis:

1. Filing of miscellaneous application under section 254(2) of the Income Tax Act, 1961:
The assessee filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, seeking to recall the ex-parte order passed by the Tribunal due to non-attendance at the hearing. The application was filed on the grounds that the assessee's mother was ill, which diverted the family’s attention, resulting in the non-attendance.

2. Justification for non-attendance at the date of hearing:
The assessee claimed that his absence on the date of the hearing was due to his mother’s illness. An affidavit was submitted in support of this claim. However, the Tribunal noted that no medical certificate or documentary evidence was provided to substantiate the illness of the assessee’s mother.

3. Timeliness and maintainability of the miscellaneous application:
The Tribunal observed that the miscellaneous application was filed after a delay of 4 years and 78 days from the date of the ex-parte order. According to the amended section 254(2) of the Act, effective from 1.6.2016, the period for filing such an application is within six months from the end of the month in which the order was passed. Consequently, the Tribunal held that it had no jurisdiction to entertain the application due to the considerable delay and the failure of the assessee to explain each day’s delay as required by law.

4. Tribunal's power to review its own order:
The Tribunal emphasized that its power under section 254(2) is limited to rectifying any mistake apparent from the record and does not extend to reviewing or rewriting its own order. The Tribunal referred to the judgment of the Hon'ble Madras High Court in Express Newspapers Ltd. vs. DCIT, which clarified that the Tribunal’s power is to amend an order to rectify an apparent mistake, not to review it. The Tribunal reiterated that recalling the entire order would imply passing a fresh order, which is beyond its jurisdiction.

5. Explanation for delay in filing the miscellaneous application:
The Tribunal cited the Supreme Court’s ruling in Balwant Singh v. Jagdish Singh & Ors., which discussed the principles of condonation of delay and ‘sufficient cause’ under the Limitation Act. The Tribunal noted that the assessee failed to provide a satisfactory explanation for the delay. The Tribunal also referred to its own decision in the case of Shri Harish Jhamnani vs. ITO, where it was held that the conduct of the assessee, bona fide reasons, and whether the delay could have been avoided by exercising due care are crucial factors in deciding such applications. The Tribunal found that the assessee's conduct was not bona fide and dismissed the application for condonation of delay.

Conclusion:
The Tribunal concluded that the miscellaneous application filed by the assessee was not maintainable due to the significant delay and lack of sufficient cause. The application was dismissed, and the Tribunal’s original order remained unchanged. The judgment was pronounced in open court on 16th September 2016.