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TMI Blog2015 (2) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007. Income-tax Appellate Tribunal has committed a grave error in dismissing the rectification application on the ground that the same is barred by limitation. From the date of receipt of the impugned judgment and order passed by the Tribunal, which is sought to be reviewed, it can be seen that the rectification application has been submitted within the period of four years from the date of actual receipt of the judgment and order and, therefore, it is to be held that the same is within the period of limitation as per section 254(2) of the Income-tax Act. Under the circumstances, the impugned order passed by the Income-tax Appellate Tribunal cannot be sustained.Tribunal was within the period of limitation as provided under section 254(2) of the Income-tax Act and the matter is now remanded to the Income-tax Appellate Tribunal to decide the rectification application/ miscellaneous application submitted by the petitioner-assessee in accordance with law and on its own merits. - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 13504 of 2013 - - - Dated:- 12-12-2013 - MR. M.R. SHAH AND MR. R.P.DHOLARIA, JJ. FOR THE APPELLANT : MR MANISH J SHAH, ADVOCATE F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation has been submitted after a period of four years. Being aggrieved and dissatisfied with the impugned order passed by the Income-tax Appellate Tribunal in dismissing the rectification application/miscellaneous application on the ground that the same is barred by limitation, i.e., beyond the period of four years from the date of passing of the judgment and order passed by the Income-tax Appellate Tribunal, the petitioner-assessee has preferred the present special civil application under article 226 of the Constitution of India. 6. Shri Manish J. Shah, learned advocate appearing on behalf of the petitioner, has vehemently submitted that the Income-tax Appellate Tribunal has materially erred in rejecting the rectification application/miscellaneous application on the ground that the same is barred by the law of limitation, i.e., beyond the period of four years. It is submitted that as such the rectification application/miscellaneous application was submitted by the petitioner-assessee within a period of four years from the date of receipt of the judgment and order passed by the Income-tax Appellate Tribunal. It is submitted that the Income-tax Appellate Tribunal has materially e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te on which the petitioner- assessee received the copy of the order of the Tribunal, which is sought to be reviewed. However, has requested to dismiss the present special civil application considering the conduct on the part of the petitioner-assessee, i.e., of preferring the rectification application/miscellaneous application after a period of three years and six months from the date of receipt of the judgment and order passed by the Income-tax Appellate Tribunal. It is sub mitted that considering the aforesaid conduct on the part of the petitioner- assessee, more particularly, when admittedly the petitioner-assessee received the order passed by the Income-tax Appellate Tribunal, which was sought to be reviewed, on November 19, 2008, and the petitioner-assessee submitted the miscellaneous application on May 9, 2012, i.e., after a period of three years and six months, it is requested that this court may not exercise the discretion in favour of the petitioner under article 226 of the Constitution of India. 7. Heard Shri Manish J. Shah, learned advocate appearing on behalf of the petitioner-assessee and Shri Manish Bhatt, learned counsel appearing on behalf of the respondent-Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, it is the case on behalf of the petitioner-assessee that the Tribunal ought to have considered the starting point of limitation from November 19, 2008, i.e., from the date of actual receipt of the judgment and order passed by the Tribunal, which is sought to be reviewed. 9. Under the circumstances, the short question, which is posed for consideration of this court is, what will be the date of commencement of the period of limitation of four years as provided under section 254(2) of the Income-tax Act ?, i.e., Whether to consider the date of the judgment and order passed by the Tribunal, which is sought to be reviewed or the actual date of the judgment and order received by the assessee ? 10. In the case of Petlad Bulakhidas Mills Co. Ltd. (supra) while considering the expression order in section 33A(2) of the Income-tax Act, the Bombay High Court has held that the expression order in section 33A(2) of the Income-tax Act means an order of which the party affected has actual or constructive notice. In the said decision, the Bombay High Court has observed and held as under (page 265 of 37 ITR) : What we have to decide is what is the meanin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he words from the date of that order must be construed as meaning the date of communication or knowledge of the order to the review. In paragraph 9 to 14 the hon'ble Supreme Court has observed and held as under : 9. So far as the commencement of the period of limitation for fil ing the review petition is concerned we are clearly of the opinion that the expression 'the date of that order' as occurring in section 48AA has to be construed as meaning the date of communication or know ledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision ; however, the power to con strue a provision of law can always be so exercised as to give throb to a sinking heart. 10. An identical point came up for the consideration of this court in Raja Harish Chandra Raj Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of such order'. The taxation officer passed an order on October 20, 1964/October 24, 1964 which was received by the person aggrieved on October 29, 1964. The appeal filed by him was within thirty days-the prescribed period of limitation, calculated from October 29, 1964, but beyond thirty days of October 24, 1964. It was held that the effective date for calculating the period of limitation was October 29, 1964 and not October 24, 1964. 13. In Raj Kumar Dey v. Tarapada Dey [1987] 4 SCC 398 this court pressed into service two legal maxims guiding and assisting the court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us herein above. 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 the record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification application has been submitted within the period of four years from the date of actual receipt of the judgment and order and, therefore, it is to be held that the same is within the period of limitation as per section 254(2) of the Income-tax Act. Under the circumstances, the impugned order passed by the Income-tax Appellate Tribunal cannot be sustained. 12. Now, so far as the submission made by Shri Manish Bhatt, learned Counsel appearing on behalf of the Revenue not to exercise the discretionary power under article 226 of the Constitution of India submitting that looking to the conduct on the part of the petitioner-assessee, more particularly, when admittedly the petitioner-assessee received the order passed by the Tribunal, which was sought to be reviewed on November 19, 2008, and the petitioner-assessee submitted the miscellaneous application on May 9, 2012, after a period of three years and six months and there is no explanation whatsoever with respect to the period between November 19, 2008, and May 9, 2012, is concerned and to dismiss the present special civil application on the aforesaid ground is concerned, the aforesaid cannot be accepted. At the outset, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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