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TMI Blog2018 (1) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... M. This is a Miscellaneous Application, filed by assessee against the appeal in ITA No. 1627/Hyd/2012, dated 31-05-2017. The appeal was considered ex-parte on merits as none appeared inspite of giving various notices. Assessee has now preferred the present Miscellaneous Application seeking recall of the ex-parte order u/s 254(2) restoring the appeal for disposal on merits. 2. We noticed that the Miscellaneous Application is not maintainable as it is filed on 09-12-2017, whereas the impugned order was passed on 31-05-2017. As per the provisions of Section 254(2) of the Income Tax Act, 1961 [Act], the time limit prescribed for filing a Miscellaneous Application, with a view to rectify any mistake apparent from record, is within six m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shall make such amendment if the mistake is brought to its notice by the assessee or as the Assessing Officer. 3. The abovementioned provision empowers the Tribunal to suo moto rectify its mistake or enable the parties to the order to seek rectification within the period of limitation i.e., six months from the end of the month in which the order was passed . In the instant case, the order was passed / pronounced on 21.06.2016 and from the end of the month, the period of six months expires on 31.12.2016. Assessee filed the present Miscellaneous Application (MA) on 20.01.2017 on the ground that the order was served upon the assessee on 05.07.2016; Reckoning the time limit from the end of the month of July, the MA filed by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the orders. He, further, relied upon the decision of the Hon ble Madras High Court in the case of S.P. Balasubrahmanyam vs. ACIT [2017] 152 DTR 25 (Mad.), at page 34 wherein the Court referred to the provisions of section 12 of the Limitation Act, which speaks of the time taken for obtaining the copy of the decree or order while computing the period of limitation. In para 21 of the judgment, the Hon ble Madras High Court observed as under:- 21. Even taking for granted that the judgments of the Apex Court are applicable to the case on hand and that the period of limitation of four years for filing an application for recalling an order filed u/s 254(2) of the IT Act, 1961, has to be computed from the date of service of the order, av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting the occasion. For example, in section 275(1)(a) of the Act, time limit was six months from the end of the month in which the order received by the Principal Chief Commissioner, Chief Commissioner or Commissioner, whichever period expires later. In sub-clause (b) thereof, the expression used is after the expiry of six months from the end of the month in which such order of revision is passed . However, in sub-clause (c) thereof, the expression used is the period of six months shall be counted from the end of the month in which the action is initiated . Thus, the Legislature was conscious of the difference between the date of receipt of the order and date of passing the order . In section 254(2) of the Act, the Legislature referre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the application filed in 2015, which is a date anterior to the introduction of six months limitation period. Even otherwise, the observations made therein cannot be equated to a finding or order since, the court was not concerned with the latest provisions of the Act. Further, the Hon ble High Court mentioned that even taking for granted that the judgments of the Apex Court are applicable to the case on hand the date of service of the order was not even mentioned and the assessee has not applied due diligence and caution ; In other words, the Court concluded that the assessee has not followed due diligence. It was also referred that even the date of order is not placed on record. In such an event, we are afraid that we have no authority ..... X X X X Extracts X X X X X X X X Extracts X X X X
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