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TMI Blog2012 (12) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... for initiating legal proceedings against each other. 2. Ld. Counsel, Shri Ved Jain for the assessee opposed the miscellaneous application on the ground that it is barred by limitation in terms of section 254(2) as ft has been filed on 26/07/2011 i.e. beyond four years from the date of the impugned order of the ITAT viz 01/02/2007. In this regard ld. Counsel relied on the decision of Special Bench in the case of Arvindbhai H. Shah v. Asst. Asstt. CIT [2004] 91 ITD 101 (Ahd.) (SB), wherein it has been held that no order can be amended through rectification u/s 254(2), after four years from the date of the order. Ld. Counsel further submitted that the decision of Hon'ble Supreme Court in the case of Electronics Corpn. of India Ltd. (supra) is applicable for appeals filed after 17/02/2011 i.e. its applicability is prospective. 3. Ld. DR has filed written submissions which are reproduced hereunder: - 1. An order passed in accordance with the directions of the Hon'ble Supreme Court would not survive if the Hon'ble Supreme Court has withdrawn the directions so issued: Hon'ble Supreme Court has vide order in ONGC v. CCE [2004] 6 SCC 437 dated 7.1.1994 direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed u/s 254(1) of the Income Tax Act 1961: The impunged order is an order massed under Rule 12 of the Appellate Tribunal Rules, 1963 rejecting the Department appeal for want of COD approval. Provisions of Rule 12 of the Appellate Tribunal Rules, 1963 are extracted below for ready reference: Rejection or amendment of memorandum of appeal. 12. The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return if for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under rule 7. The Hon'ble Tribunal vide the impugned order rejected the appeal of the Department without adjudicating it on merits and also granted liberty to seek adjudication of the appeal on merits if the COD approval is furnished after praying for a recall of the impugned order. An order u/s 254(1) is passed by the Hon'ble Tribunal after an appeal, which is not deficient, after hearing both the parties to the appeal an opportunity of being heard. Therefore, the impugned order is not governed by the limitation of four years form the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution of the appeal as per the decision of the Supreme Court. The Revenue has not produced the approval of the COD. 3. In the absence of COD approval, the appeal filed by the Revenue is dismissed. The Revenue would be at liberty to seek adjudication of the appeal on merits if the COD approval is furnished after praying for a recall of this order. 4. In the result, the appeal fried by the Revenue is dismissed. Decision pronounced in the open court after the hearing on 1st February, 2007.'' 8. Thus, Tribunal dismissed the appeal as the appeal could not be proceeded with in the absence of COD approval in view of the decision of Hon'ble Supreme Court in the case of ONGC v. CCE [2004] 65 SCC 437. However, it had given liberty to revenue to seek adjudication of the appeal on merits if the COD approval was obtained after praying for recall of the order. 9. Hon'ble Supreme Court in the case of Electronics Corporation of India Ltd. (supra) inter alia, observed as under - 'One cannot possibly expect timely clearance by the Committee on Disputes In such cases, grant of clearance to one and not to the other may result in generation of more and more li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after considering the merits so that finality is achieved. This is the reason that in Order XL1 to CPC under different Rules, power is given to Court to reject the appeal on preliminary issues but at the same time under Rule 19 specific power is given for Re-admission of appeal. This Rule reads as under:- Re-admission of appeal dismissed for default. 19. 'Where an appeal is dismissed under rule 11 sub-rule (2), or rule 17 or rule 18. the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. Thus, the primary intention of Legislature, in incorporating the provisions of appeal, is to ensure that rights and liabilities of parties are finally settled Accordingly, Courts have been empowered to pass certain interim orders also in order to sub serve the ends of justice by finally adjudicating the rights and liabilities of parties by deciding appeals on merits. If rights and liabilities stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... templated under the Rule is primarily an interim order and not an order u/s 254(1) because this order is not an order on appeal but on Memorandum of Appeal. As per this Rule, it is only, the amended Memorandum of Appeal, which is to be considered for adjudication and the date of presentation of the Memorandum of Appeal is to be treated as the effective date of presentation of the appeal. The orders contemplated u/s 254(1) are such orders which adjudicate the appeal which is analogous to section 107 of CPC. The 'appeal' contemplated u/s 254 is such appeal which is free from all defects and can be taken up for decision on merits. 12. This issue can be looked at from a different angle also. In the present case, it is true that COD did not grant its permission even till the decision of Hon'ble Supreme Court recalling its earlier directions and four years period had elapsed since the passing of the impugned order by Tribunal. But let us take an hypothetical case where Tribunal dismissed an appeal for want of COD approval and after four years of the Tribunal's order, COD approval was granted. Further this situation arose prior to the decision of Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s applicable to future cases to avoid uncertainly as per the ratio laid down in M, A. Murthy v. State of Karnataka 264 ITR 1 SC. where it was observed that prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by the Court while superseding the law declared by it earlier. It is not possible to anticipate the decision of the highest court or an amendment and pass a correct order in anticipation as per the ratio laid down in CIT v. Schlumberger Sea Company 264 ITR 331 (Cal.). Therefore, the amendment introduced in s. 260-A(2A) has the perfect only on pending and future cases. On the date when the appeal was dismissed on the ground of limitation, there was no discretion with the court to condone the delay. A discretion has come to the court by virtue of the amendment by inserting s 260-A (2A). The appeal was (rightly) dismissed as per the then law and the subsequent amendment is not applicable as the matter has already attained finality. 13. This decision cannot be applied to the present case because the Tribunal itself had put a rider in the order that if the COD approval was obtained then department could move for rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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