2018 (1) TMI 800 - AT - Income Tax

Seeking recall of the ex-parte order u/s 254(2) restoring the appeal for disposal on merits - Held that - Respectfully following the same, we hold that the present application is barred by limitation. In the result, Miscellaneous Application is dismissed. See Srinivas Sashidhar Chaganty, Hyderabad Versus ITO 2016 (8) TMI 458 - ITAT HYDERABAD

Summary

Issues involved:
1. Maintainability of a Miscellaneous Application filed by the assessee against an appeal in ITA No. 1627/Hyd/2012, dated 31-05-2017.
2. Interpretation of the time limit prescribed under Section 254(2) of the Income Tax Act, 1961 for filing a Miscellaneous Application.
3. Comparison of the expressions "passed," "initiated," and "served/received" in relation to the period of limitation for filing a Miscellaneous Application.
4. Consideration of the date of uploading of an order as a reference point for reckoning the period of limitation.

Analysis:
1. The assessee filed a Miscellaneous Application seeking recall of an ex-parte order under Section 254(2) of the Income Tax Act, 1961. The Tribunal found the application not maintainable due to being filed after the prescribed time limit, which is within six months from the end of the month in which the order was passed. The application was filed on 09-12-2017, exceeding the time limit from the order passed on 31-05-2017, thus rendering it barred by limitation.

2. The Tribunal referred to a Co-ordinate Bench decision in a similar case, highlighting the importance of adhering to the prescribed time limit for filing a Miscellaneous Application. The assessee argued that the time limit should be calculated from the date of receipt of the order, emphasizing substantial justice and citing relevant court decisions. However, the Tribunal emphasized that the period of limitation should be reckoned from the end of the month in which the order was passed, not from the date of receipt.

3. The debate revolved around the interpretation of the expressions "passed," "initiated," and "served/received" in the context of the legislative provisions. The Tribunal clarified that these terms are not interchangeable, and in the case of Section 254(2) of the Act, the period of limitation is to be calculated from the date the order is "passed." The assessee's argument to consider the date of receipt of the order was dismissed, emphasizing the legislative intent behind the specific phraseology used in the Act.

4. Additionally, the Tribunal considered the date of uploading of the order as a reference point for reckoning the period of limitation. While the assessee argued for a liberal view to interpret the expression "passed," the Tribunal held that the date of uploading can be considered as the date of service of the order. However, in this case, the Miscellaneous Application was found to be beyond the period of limitation even when considering the date of uploading, leading to the dismissal of the application as barred by limitation.

In conclusion, the Tribunal dismissed the Miscellaneous Application as being barred by limitation, emphasizing the importance of adhering to the prescribed time limit for filing such applications under the Income Tax Act, 1961.