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TMI Blog2018 (12) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... ised through this Miscellaneous Application route in the context of appeal of the assessee. Accordingly, the issue raised by the Revenue on merits stands dismissed. Miscellaneous Application filed by the Revenue is dismissed. - MA No.16/PUN/2018 (Arising out of ITA No.589/PUN/2015) / Assessment Year : 2011-12 - - - Dated:- 17-12-2018 - Shri D. Karunakara Rao And Shri Vikas Awasthy, JJ. Revenue by: Shri Sudhendu Das Assessee by: Shri Pramod Shingte ORDER D. Karunakara Rao, This Miscellaneous Application arises from the order of the Tribunal vide ITA No.589/PUN/2015 for the assessment year 2011-12 dated 09.06.2017. 2. Before us, ld. DR for the Revenue submitted that the Tribunal passed the order on 09.06.2017 and the same was served to the Pr.CIT-1, Pune on 22.09.2017. Against the said order of the Tribunal, the Revenue filed Miscellaneous Application dated 29.01.2018 with delay of 30 days before the Tribunal. Preliminarily Issue 3. On the issue of delay, the Revenue filed an affidavit before us stating that the scrutiny report was submitted by the Assessing Officer on 09.10.2017 whereas the Pr. CCIT, Pune decided not to file any appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o extract and the same is extracted hereunder :- 4. We have heard the submissions made by representatives of rival sides. This Miscellaneous Application has been filed by the assessee u/s. 254(2) of the Act seeking rectification in the order of Tribunal dated 29-07- 2016. The provisions of section 254(2) have been amended by the Finance Act, 2016 w.e.f. 01-06-2016. The amended provisions of Sub- section (2) of Section 254 reads as under : The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer]. 6. The said order is also relevant for another proposition that the Tribunal does not have the power of condonation of the delay if there is a delay in filing of the Miscellaneous Application. 7. Brining our attention to another decision of Mumbai Bench of the Tribunal in the case of DCIT vs. Hita Land Private Limited vide MA No.103/Mum/2017 (arising out of ITA No.8247/Mum/2011) for the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. DR that the date of communication is to be taken either as communication or knowledge, actual or constructive of the order sought to be reviewed is concerned, we are guided by the decision of the full Bench of the Hon'ble Supreme Court in the case of State of Punjab Vs. Mst.Qaisar Jehan Begum and Another AIR 1963 SC 1604 : (1964) 1 SCR 971. (Full Bench), wherein the Hon'ble Supreme Court while considering the words knowledge either actually or constructively has held that the knowledge of award does not mean a mere knowledge of the fact that the award has been made. The knowledge must relate to the essential contents of the award. 7. The said proposition of law can be safely applied to the case in hand. Though the operative part of the order may be in the knowledge of the assessee, however, whether there is any mistake apparent on record in the contents of the order, it can be noticed only after going through the contents of the order. The order in this case admittedly was dispatched on 29.6.2017, even if that is taken the date of communication, the application of the assessee can be safely said to have been filed within the period of limitation. This issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order. The Tribunal has been given power to admit an appeal after the expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period as per Section 253(5). However, this Tribunal is not enshrined with such powers in respect of a miscellaneous petition filed u/s 254(2) of the Income Tax Act. If we are not given that power, then it is not expected from us to exercise such power which is not provided in the Act. The Tribunal, being creation of law, is bound by the statutory provisions and our jurisdiction is simply to interpret and follow the Statute. There is no scope for us to import any word into the Statute which is not there. Such importation would be nothing but to amend the Statute. We therefore hold that the condonation of delay of these petitions is beyond our jurisdiction, hence rejected. Similar view has been taken by the Mumbai Tribunal in the cited order. Hence, finding the petitions time barring, we dismiss the same. 10. We perused the aforesaid judgment of the Hon ble Gujarat High Court in the case of Peterplast Synthetics (P.) Ltd. (supra) and find the same pertains to the pre-amended provisions of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. 14. On the other hand, ld. Counsel for the assessee submitted that the issue of applicability of the provisions of section 194H r.w.s. 40(a)(ia) of the Act was never raised by the Revenue before the CIT(A) or before the Tribunal. Therefore, the Miscellaneous Application of the Revenue has no legs to stand as the issue arises from the order of the CIT(A). The ld. Counsel submitted that the same is superfluous and also the same is reckoned to the Assessing Officer s findings on the issue otherwise there is no requirement for the Tribunal to consider the same. In-effect, the Miscellaneous Application filed by the Revenue should be dismissed in view of the fact that the same does not arise from the impugned order of the CIT(A). 15. On considering the above arguments of the ld. Counsel for the assessee, we are of the opinion that the issue of applicability of provisions of section 194H r.w.s. 40(a)(ia) of the Act was not adjudicated by the CIT(A) as he confirmed the addition on merits holding that the payment of ₹ 60 lakhs is non-genuine transactions. Ideally, the Revenue should have filed an appeal against the said finding of the CIT(A). Without prejudice to the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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