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TMI Blog2013 (11) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in its application, had submitted that he is a blind man and is aged more than 62 years. He was carrying on the business of estate broker and developer for the last several years in co-operation and complete assistance of his brother-in-law Mr. Haresh Parasrampuria. His income tax matters were looked after by Mr. S.L. Jain, Chartered Accountant of M/s. Shankarlal Jain & Associates, whose address was also given in Form no. 36. It has been further deposed that the said Chartered Accountant has not been cooperating with the Assessee and has been avoiding to attend his tax matters and the lis pending before the appellate courts. After a gap of a very long period, the Assessee came to know that the Income-tax Department have initiated the proceedings for attachment of his office by way of public auction. The said property was, in fact, later on sold by the Income-tax Department against the arrear demand of Rs. 20,00,000, in the month of January, 2011. 4. The Assessee, through the aforesaid Chartered Accountant, had filed appeal for the assessment year 1990-91 against the order passed by the learned Commissioner (Appeals) before the Tribunal on 5th December, 2002, and up to 20th Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Registrar finally provided the copy of the order of the ITAT to the assessee. 27/02/2012 Assessee filed the M.A. on 01.03.2012 vide its letter dated 27.02.2012 to recall the order of the ITAT for A.Y. 1990-91 and therefore the same was filed within 14 days from the date when the order was communicated to the assessee. 6. Based on the aforesaid, the learned Counsel reiterated the facts before us that the Assessee was completely a blind man and was totally dependent upon his Chartered Accountant Mr. S.L. Jain, who, due to some reasons, had started avoiding his tax matters and stopped cooperating with him. In the memorandum of appeal, which was filed before the Tribunal, the Chartered Accountant has mentioned his own official address whereby all the notices were to be communicated. However, he did not inform about any such notices or about the ex parte order passed by the Tribunal. It was only in the month of January, 2011, that he came to know that Income-tax Department has initiated the proceedings for the attachment of his office through public auction which, in fact, was sold on 20th January, 2011 and tax challan of Rs. 20,00,000 was issued by the Department. Thereafter, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of order and the date of order has to be understood, when the order is signed. In the present case, the order has been passed and signed on 4th August, 2006 and, therefore, the application filed by the Assessee in the month of March 2012, is clearly barred by the limitation. In support of his contentions, he heavily relied upon the Five Members' decision of Special Bench of the Tribunal, Mumbai, in Arvindbhai H. Shah v. Asstt. CIT[2004] 91 ITD 101 (Ahd.) wherein it has been held that no rectification can be made after the period of limitation of four years and is applicable to suo motu action of the Tribunal as well as to the action taken on the request of the parties. He referred to the various paragraphs and the decision of the Special Bench of the Tribunal relied upon. On the judgment relied upon by the learned Counsel for the assessee, he submitted that none of the judgments are on section 254(2). 10. In the rejoinder, the learned Counsel for the assessee, while referring to Paras-17 to 32 of the Special Bench decision of Arvindbhai H. Shah (supra) contended that the Special Bench has clearly stated that they are not expressing their opinion on the issue, whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record or to amend any order passed by the Tribunal under sub-section (1) of section 254, can be done suo motu or when such mistake is brought to its notice and rectification is sought by the Assessee or the Department. The time frame prescribed is "four years from the date of the order". Whether limitation for filing of rectification would start running from the date when the order is communicated or would be reckoned from the date of order itself. The interpretation of the phrase "from the date of the order" in the context of period of limitation has come for judicial scrutiny before the Hon'ble Apex Court on large number of occasion. In the leading case, the Hon'ble Supreme Court in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer, AIR 1961 SC 1500, had an occasion to consider the question as to what would be the starting point of limitation in a case under the Land Acquisition Act. It was a matter concerning a reference under section 18 of the Land Acquisition Act which provides for a limitation of six months from the date of the collector's award for seeking a reference when the person interested was not present before the collector at the time of making of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... functions must also apply to him. The point has been considered and decided by this Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer. This was a case under the Land Acquisition Act, 1894 and the Court was considering the question of limitation under the proviso to sec. 18 of that Act. Under sec. 18 of the Land Acquisition Act a person who has not accepted the Collector's award can apply to the Collector requiring him to refer the matter for the determination of the court. This application has to be made within Six months from the date of the Collector's award in the case where person interested was not present or represented before the Collector at the time when he made his award or had received no notice from the Collector of the award. Construing the expression "the date of the award" this Court observed: "The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructivel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, may be kept in the file and consigned to record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be countenanced." 15. Similar view has been taken by the Allahabad High Court in Vijay Kumar Ruia (supra) and the Jurisdictional High Court in Petlad Bulakhidas Mills Co. Ltd. (supra), as referred to by the learned Counsel. 16. From the principles and maxims laid down by the Hon'ble Supreme Court in catena of cases as referred to above, it is amply clear that the "date of order" should be construed and reckoned with the date of knowledge of the order i.e., when the order has been communicated to the party. The legal maxim behind this is, how a person concerned or a person aggrieved is expected to exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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