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TMI Blog2016 (5) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... stances of the case and in law, the Tribunal has erred in dismissing the M.As filed by the Department ? (ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal has erred in dismissing the M.As filed by the Department without appreciating the decision of the Tribunal in the case of DCIT Vs. Airport Authority of India (2013) 86 DTR 222 (Delhi-Tribunal), wherein it has been held that the order of the Tribunal dismissing Revenue appeal for want of COD approval was an order under rule 12 of ITAT Rules 1963 r.w.s. 255(5) and not an order as contemplated u/s 254(1) and therefore the limitation u/s 254(2) is not applicable to the said order? 3. The Respondent-Assessee is a public sector undertaking. The Appellant- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recall of the order dated 6th November, 2007. This on the ground that the order dated 6th November, 2007 is not an order passed under Section 254(1) of the Act but an order under Section 225 of the Act read with Rule 12 of the Income Tax Appellate Tribunal Rules, 1963 (ITAT Rules). Thus, it is the case of Revenue that no period of limitation much less the period of limitation of four years as provided in Section 254(2) of the Act applies. 7. Before dealing with the grievance of the Appellant-Revenue, it must be pointed out that it is an agreed position between the parties that the issues arising herein stand covered against the Revenue and in favour of the Respondent-Assessee by the decision of this Court in Writ Petition No.11580 of 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the contentions urged on behalf of the Appellant-Revenue. 8. Before dealing with the grievance of the Revenue, it may be necessary to reproduce Rule 12 of the ITAT Rules which reads as under:- R. 12. Rejection or amendment of memorandum of appeal - The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return it 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. Rule 7 of the ITAT Rules reads as under :- R. 7. Date of presentation of appeals - The Registrar, or as the case may be, the authorised officer, shall endorse on every memorandum of appeal the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November 2007 before a division Bench of the Tribunal leading to an order of even date under Section 254(1) of the Act. This order dated 6 November, 2007 is an appealable order under Section 260A of the Act. 11. One more aspect which can not be lost sight of is that whenever an memorandum of appeal is rejected under Rule 12 of the ITAT Rules, then it has to be represented under Rule 7 of the ITAT Rules. In this case undisputedly no memorandum of appeal has been represented by the Revenue under Rule 7 of the ITAT Rules. This also is indicative of the fact that the order dated 6 November 2007 of the Tribunal has not been exercised under Rule 12 of the ITAT Rules but under Section 254(1) of the Act. Moreover the period from the date of rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Delhi Bench of the Tribunal in Dy. CIT v/s. Airport Authority of India 86 DTR 222 to contend that Rule 12 of the ITAT Rules applies, does not advance its cause. This for the reason as pointed out herein above that in the present facts Rule 12 of the ITAT Rules has not been invoked while dismissing the Appellant-Revenue's appeal by order dated 6 November 2007. Moreover the reliance by the Delhi Bench of the Tribunal upon Order 41 Rule 19 of the Civil Procedure Code is inappropriate as it does not deal with the situation arising in the present facts. Order 41 Rule 3 of the Civil Procedure Code is similar to Rule 12 of the ITAT Rules and it has been adverted to by the Delhi Bench of the Tribunal, yet as pointed out above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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