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TMI Blog2009 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... days of filing. This MA was therefore fixed for hearing although the appeal file record was not available. Hence the facts as found from the copies of the order of Tribunal rendered in the appeal i.e. ITA No. 5301/Del/2003 dt.22nd Sept., 2006and from MA of the Department being M.A. No. 97/Del/2002 are being culled out and narrated as below. 2.1 The assessee trust filed application in Form No. 10G for seeking renewal for approval under s. 80G of IT Act. The application was filed on31st March, 2003. 2.2 The Director of IT (Exemption), after examining the facts and after conducting investigation into the matter, found that the basement of the building of the trust was utilized for multi-purposes by the assessee trust and the canteen on the 1st floor was used to provide food to the selected persons only. He also observed that the activities of trust were purely religious in nature. On the basis of these observations, the learned Director of IT (Exemption) rejected the application of the assessee vide his order dt.30th Sept., 2003. 2.3 As revealed out from the order rendered in ITA No. 5301, the assessee filed appeal against the order of Director of IT (Exemption) before Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectified. 4. At the time of hearing of the appeal, to learned Departmental Representative after making reference to the provision contained in s. 253(1) pointed out that amendment for providing the remedy of appeal against the order passed under s. 80G of IT Act by the CIT/Director of IT (Exemption) is effective from 1st June, 2007 and prior to that date there was no right of appeal against such order. According to him, therefore, the appeal before Tribunal against such order was not maintainable. He further argued that the order of Tribunal in entertaining the appeal and in granting relief to the assessee is illegal and bad in the eye of law and the same requires to be recalled and quashed. 5. The learned Authorised Representative, on the other hand submitted that amendment is only procedural and does not involve substantive lights. According to him, the amendment has to be treated as retrospective in nature and was applicable to the pending proceedings. 6. We want to state certain relevant events and the undisputed facts which are as under: (1) The application for claiming the benefit of s. 80G of IT Act was filed on31st March, 2003. (2) The CIT passed order rejecting the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is amendment prospectively. All the events narrated in above para took place before the amended provision came into existence. Even the order of the Tribunal was passed on22nd Sept., 2006i.e. prior to the amendment. Hence neither at the time of filing the appeal by the assessee nor at the time of passing the order by the Tribunal, the amended provision existed on the statute. 10. The contention raised on behalf of the assessee (respondent) for opposing the M.A. are as under: (a) That the Revenue did not point out that order under s. 80G(5)(vi) was not appealable and did not oppose the admission of the appeal. (b) That since the law has been amended and the specific provision has been made, the order as per the amendment is appealable. (c) Since the issue involved is arguable issue on which a difference of opinion may exist, therefore, such issue cannot be a subject-matter of adjudication under s. 254(2). 11. Now we propose to take up these points as under: 11.1 It is settled legal position that lack of jurisdiction or defect in the exercise of jurisdiction can be pointed out at any stage. Hence, even if the Revenue did not point out jurisdictional defect relating to maintaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal was filed, the Tribunal had no jurisdiction to entertain the appeal. Thus the illegality of jurisdiction or error in the exercise of the jurisdiction cannot be protected by taking recourse to subsequently amended provision. The intention of legislature definitely was not to make the amendment as applicable to pending proceedings as no such specific provision was made. In my most humble opinion, therefore, the issue cannot be treated to be arguable or debatable. 13. So far as principle of retrospective operation of the statute is concerned, the legislature can legislate prospectively as well as retrospectively. By retrospective legislation, the legislature may make a law which is operative for limited period prior to the date of its coming into force. However for doing so, the legislature has to specifically provide for the same. In the absence of such specific provision, the amendments made in law are deemed to be prospective unless the intention of the legislature appears to be otherwise or the object of the legislature so warrants. Hence it is a cardinal principle of construction of a statutory provision that every statute is prima facie prospective unless it is expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amending Act. In the case of United Provinces vs. Mst. Atiqa Begum AIR 1941 FC 16 it was held that a retrospective statute which affects the rights in existence is not rightly construed to affect adjudication of pending cases. In that case it was observed that "Courts have undoubtedly leaned very strongly against applying a new Act to a pending action when the language of the statute does not compel them to do so". In the words of S.R. Das, Chief Justice as expressed in the case of Garikapati vs. N. Subbiah Chaudhry AIR 1957 P. 540 Hon'ble Supreme Court observed that "The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed". 17. So far as nature of the order passed in the absence of jurisdictional authority is concerned, it is a settled legal position that an order or decision, which is a nullity or void, cannot be treated to be an order or decision under the Act. In the case of Ujjam Bai vs. State ofUttar Pradesh AIR1962 SC 1621 the Hon'ble Supreme Court has laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n opportunity of hearing to the party affected; (c) when it has violated the fundamental provisions of the Act. e.g., when it fails to take into account matters which it is required to take into account or when it takes into account extraneous and irrelevant matter; (d) when it has acted in bad faith; and (e) when it grants a relief or makes an order which it has no authority to grant or make; as also (f) when by misapplication of the law it has asked itself the wrong question." 17.4 Hon'ble Justice Paripoornan, J. in the case of Mafatlal Industries vs. Union of India has adopted the above conclusions by observing as under: "I would adopt the above statement of the law as my own." 18. Thus in view of the above authorities, the decision passed by the Tribunal being without jurisdiction has to be treated and considered as a patently erroneous decision in the eye of law and consequently it is to be held that there is apparently glaring and grave error of law in the order of the Tribunal. 19. In view of the above, since there was no right of appeal at the time the Director of IT (Exemption) passed the impugned order, the order became final and was not appealable. Merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned with the application under s. 254(2) of the 1961 Act. As stated above, the expression 'rectification of mistake from the record' occurs in s. 154. It also finds, place in s. 254(2). The purpose behind enactment of s. 254(2) is based on the fundamental principle that no party appearing before the Tribunal, be it an assessee or the Department, should suffer on account of any mistake committed by the Tribunal. This fundamental principle has nothing to do with the inherent powers of the Tribunal. In the present case, the Tribunal in its order dt.10th Sept., 2003allowing the rectification application has given a finding that Samtel Color Ltd. was cited before it by the assessee but through oversight it had missed out the said judgment while dismissing the appeal filed by the assessee on the question of admissibility/allowability of the claim of the assessee for enhanced depreciation under s. 43A. One of the important reasons for giving the power of rectification to the Tribunal is to see that no prejudice is caused to either of the parties appearing before it by its decision based on a mistake apparent from the record. 13. 'Rule of precedent' is an important aspect of legal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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