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TMI Blog2017 (10) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... e into force extinguishing the right to file an appeal. In the considered opinion of this Court, application preferred by the assessee should not have been dismissed by the Tribunal on account of the amendment which has reduced the period of limitation of four years to six months. Resultantly, the impugned order passed by the respondent on 23/12/2016 is hereby quashed and the writ petition stands allowed. The Income Tax Appellate Tribunal is directed to decide the application preferred under Section 254(2) on merits within a period of three months from the date of receipt of certified copy of this order. - Writ Petition No. 4144 of 2017 - - - Dated:- 9-10-2017 - MR. S.C. SHARMA AND ALOK VERMA, JJ. For The Petitioner : Ashish Goyal For The Respondent : Ms. Veena Mandlik ORDER S.C. Sharma, J. - The petitioner before this Court, District Central Co- operative Bank Limited, District Raisen through its Manager, has filed present petition being aggrieved by order dated 23/12/2016 passed in M. A. No.79/IND/2016 assessment year 2010-11. 2. The facts of the case reveal that the assessee has filed an application under Section 254(2) of the Income Tax Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: [Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] 6. Meaning thereby, the period of limitation for which the assessee was entitled i.e. four years was curtailed to six months by virtue of the amendment in Section 254(2) of the Income Tax Act, which came into force w.e.f. 01/06/2016 and the existing right of the petitioner was extinguished. 7. The apex Court in the case of M. P. Steel Corporation v. Commissioner of Central Excise reported in [2015] 7 SCC 58 has considered the issue relating to amendment in respect of limitation and has also taken into account the applicability of such statutes with retrospective effect. The Hon ble Justice Rohinton Fali Nariman in the aforesaid landmark judgment in paragraphs No.53 to 62 has held as under:- 53. Shri A.K. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a longer period cannot revive a dead remedy. Nor can it suddenly extinguish a vested right of action by providing for a shorter period of limitation. 56. This statement of the law was referred to with approval in Vinod Gurudas Raikar v. National Insurance Co. Ltd. [1991] 4 SCC 333 as follows:- 7. It is true that the appellant earlier could file an application even more than six months after the expiry of the period of limitation, but can this be treated to be a right which the appellant had acquired. The answer is in the negative. The claim to compensation which the appellant was entitled to, by reason of the accident was certainly enforceable as a right. So far the period of limitation for commencing a legal proceeding is concerned, it is adjectival in nature, and has to be governed by the new Act - subject to two conditions. If under the repealing Act the remedy suddenly stands barred as a result of a shorter period of limitation, the same cannot be held to govern the case, otherwise the result will be to deprive the suitor of an accrued right. The second exception is where the new enactment leaves the claimant with such a short period for commencing the legal proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, such period would render the vested right of action contained in the statute nugatory as such right of action would now become time barred under the amended provision. 59. This aspect of the matter is brought out rather well in Thirumalai Chemicals Ltd. v. Union of India [2011] 6 SCC 739 as follows: 22. Law is well settled that the manner in which the appeal has to be filed, its form and the period within which the same has to be filed are matters of procedure, while the right conferred on a party to file an appeal is a substantive right. The question is, while dealing with a belated appeal under Section 19(2) of FEMA, the application for condonation of delay has to be dealt with under the first proviso to sub-section (2) of Section 52 of FERA or under the proviso to sub-section (2) of Section 19 of FEMA. For answering that question it is necessary to examine the law on the point. Substantive and procedural law 23. Substantive law refers to a body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well be the case. As has been noticed above, periods of limitation being procedural in nature would apply retrospectively. On the facts in the judgment in the Thirumalai case, it was held that the repealed provision contained in the Foreign Exchange Regulation Act, namely, Section 52 would not apply to an appeal filed long after 1.6.2000 when the Foreign Exchange Management Act came into force, repealing the Foreign Exchange Regulation Act. It is significant to note that Section 52(2) of the repealed Act provided a period of limitation of 45 plus 45 days and no more whereas Section 19(2) of FEMA provided for 45 days with no cap thereafter provided sufficient cause to condone delay is shown. On facts, in that case, the appeal was held to be properly instituted under Section 19, which as has been stated earlier, had no cap to condonation of delay. It was, therefore, held that the Appellate Tribunal in that case could entertain the appeal even after the period of 90 days had expired provided sufficient cause for the delay was made out. 61. The present case stands on a slightly different footing. The abortive appeal had been filed against orders passed in March- April, 1992. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation provided by Section 128 after 2001. 62. We, therefore, set aside the order dated 25.2.2004 and remand the case to CESTAT for a decision on merits. The appeal is allowed in the aforesaid terms. There will be no order as to costs. We, therefore, set aside the order dated 25.2.2004 and remand the case to CESTAT for a decision on merits. The appeal is allowed in the aforesaid terms. There will be no order as to costs. 8. Keeping in view the judgment referred by their lordships in the aforesaid case and the judgment delivered by their lordships in the M.P. Steel Corporation (supra), in the present case also the new law of limitation providing a shorter period cannot certainly extinguish a vested right of action. 9. The amendment has been made effective virtually in case of assessee with retrospective effect though the amendment does not show that it is applicable with retrospective effect, however, the existing right has been extinguished with retrospective effect in case of the assessee. 10. In the considered opinion of this Court, the legislature should have granted some time to the assessees who could have filed an appeal within a period of four y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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