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TMI Blog2019 (9) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... 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" 3. In this regard, the ld. DR submitted that on receiving the order of Hon'ble ITAT, Jaipur the Assessing Officer, Circle-2, Alwar has intimated to DRP-1, New Delhi regarding order of ITAT with request to examine the issue as this matter was remanded back to the DRP. Vide this office letter dated 12.09.2017 and 10.10.2017. But the DRP has not responded to these letters well in time. Meanwhile, set aside proceedings have been initiated by the AO and notice u/s 143(2) & 142(1) have been issued to the assessee company. Thereafter, the DRP has given its response on the matter vide letter No. 259 dated 15.10.2018. In which the DRP has conveyed that miscellaneous application needs to be filed on the ground that the DRP is neither empowered to issue any Direction u/s 144C(5) of the Act in a case set aside by the Hon'ble ITAT directly to the DRP, nor is there any limitation laid down by the Act for iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order was passed. Thus, in the absence of any provision u/s 254(2) or any other provisions of the Income Tax Act to condone the delay in filing the miscellaneous application we do not find any substance in the plea of the assessee to condone the dely. The Coordinate Bench of this Tribunal has considered an identical issue of maintainability of the miscellaneous application filed beyond the period of limitation in case of ITO vs. Shri Ram Ratan Modi in MA No. 93/JP/2017 vide order dated 27.12.2017 as has in para 3 as under:- "3. We have considered the rival submissions as well as relevant material on record. We note that the present miscellaneous petition was filed by the Revenue for recalling of the order dated 18.12.2015 and therefore, as per un-amended provisions of Section 254(2) of the Act, the limitation period provided for rectification of the mistake was 4 years from the date of order. However, the provisions of Section 254(2) has been amended by the Finance Act, 2016 w.e.f. 01.06.2016 providing the limitation period for rectification of mistake as 6 months from the end of the month in which the order is passed. For ready reference, we quote section 254(2) as under:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.]] (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal." Thus, by Virtue the amendment in the provisions of Section 254(2) of the Act w.e.f. 01.06.2016 the time period within which the mistake apparent from record can be rectified has been reduced from 4 years 6 months. There is no quarrel on the point that this amendment in Section 254(2) cannot be given effect retrospectively so as to take way of right of the parties to file the application of rectification. The Hon'ble M.P. High Court in case of District Central Cooperative Bank Ltd. Vs. Union of India(supra) has observed in paras 9 and 10 as under:- " 09- 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 respective effect, however, the existing right has been extinguished wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided that an amendment which has the effect of enhancing 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 subsection on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]" 6. The time period within which the mistake apparent from record can be rectified has been reduced from 4 years to 6 months by the amendment vide Finance Act, 2016 w.e.f. 01.06.2016. Thus after the substitution of this provision w.e.f. 01.06.2016, the limitation period for rectification of mistake apparent from record is provided only for 6 months from the end of the month in which the order was passed. In the case in hand, the impugned order was passed by the Tribunal on 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not decided the appeals of the assessee on merit but dismissed the same in limine for want of prosecution. However, the question of rectification of mistake cannot be entertained until and unless the Miscellaneous Petition filed by the assessee is found to be maintainable. The miscellaneous petition filed by the assessee is beyond the period of 6 months from 04.01.2016 and therefore the same is barred by limitation. In the absence of any provision to condone the delay under the Income-tax Act, it may be a case of omission in the provision of Act which cannot be supplied by us when there is no ambiguity in the provisions of section 254(2) of the Act. The Hon'ble Bombay High Court in the case of Bharat Petroleum Corpn. Ltd. v. ITAT [2013] 359 ITR 371/[2014] 42 taxmann.com 25, while dealing with an identical issue has held in paras 16 to 18 as under: "16. It was next contended on behalf of the petitioner that the power of the Tribunal under section 254(2) of the Act is only to rectify an error apparent from the record. It does not empower the Tribunal to recall its earlier order dated December 6, 2007, for which the miscellaneous application was filed on August 6, 2012. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these circumstances, the application would be an application for rectification of the order dated December 6, 2007, and would stand governed by section 254(2) of the Act. 17. In the facts of the present case there can be no denial that the order dated December 6, 2007, suffers from an error apparent from the record. The error is in having ignored the mandate of rule 24 of the Tribunal Rules which required the Tribunal to dispose of the matter on the merits after hearing the respondents. In these circumstances, an application for rectification would be under section 254(2) of the Act. The recall of an order would well be a consequence of rectifying an order under section 254(2) of the Act. In these circumstances, we find no reason to interfere with the order of the Tribunal holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n (b) : The miscellaneous application for recall of an order falls under section 254(2) of the Act and not under section 254(1) of the Act. Question (c) : Does not arise in view of our response to query (b) above. 20. In view of the reasons given hereinabove, we find the Tribunal was correct in dismissing the miscellaneous application by its order dated April 10, 2013, as being beyond the period of four years as provided under section 254(2) of the Act. 21. Accordingly, the petition is dismissed with no order as to costs." 8. In view of the facts and circumstances of the case as well as the decision of the Hon'ble Bombay High Court in the case of Bharat Petroleum Corpn. Ltd. (supra), we hold that the miscellaneous petition filed by the assessee are beyond the period of limitation as provided under section 254(2) and are not maintainable. Accordingly the same is dismissed being barred by limitation." Accordingly, in view of the above facts and circumstances as discussed in foregoing paras as well as the decision of the Bangalore Benches of the Tribunal (supra) the miscellaneous petition filed by the Revenue on 22.05.2017 is beyond the period of limitation expired on 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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