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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 ..... : Shri P. C. Parwal (CA) For the Revenue : Shri Ashok Khanna (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. The present Misc. Application has been filed by the Revenue against the order passed by the Co-ordinate Bench decision in IT(TP)A No. 1 2/JP/2016 dated 04/07/2017. 2. At the outset, it is noted that the Misc. Application filed by the Revenue is barred by the limitation as provided in section 254(2) of the Act which reads as under:- 254(2) 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 : 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of this Tribunal vide order dated 06.02.2018 has considered an identical issue of delay in filing the Miscellaneous Application and maintainability of such application in para 4 as under :- 4. Having considered the rival submissions as well as relevant material on record we note that the certified copy of the impugned order was issued and send to the assessee on 21.04.2017. We further note that the assessee provided address for communication in the form No. 36 as the address of the counsel who was authorized and representing the assessee in the appeal. The assessee now come up with the plea that the assessee has taken the certified copy only on 08.09.2017 which is only another copy of the impugned order provided to the assessee on his request. However, once the order was duly send to the assessee at the given address then, this plea of the assessee cannot be accepted. Undisputedly the present miscellaneous application has been filed by the assessee beyond the period of 6 months from the end of the month in which the impugned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253, for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order: Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: 80 [Provided also that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n will be available to the assessee from the date of amendment i.e. on 01.06.2016 for a period 6 months. Thus, the present miscellaneous petition filed by the Revenue on 22.05.2017 is beyond the period of limitation which has expired on 30.11.2016. We may clarify that in case the impugned order is prior to the amendment w.e.f. 01.06.2016 then the limitation period of 6 months would reckon from 01.06.2016 so that the right of the applicant is not curtail by the subsequent amendment. We further, note that the Bangalore Benches of this Tribunal in case of Smt. Padma K. Bhat vs. ACIT 166 ITD 172 had the occasion to consider an identical issue and one of us the Judicial Member is party to the said order and held in paras 5 to 8 as under:- 5. We have considered the above submissions and carefully perused the relevant record. The assessee has filed this miscellaneous petition on 10.03.2017 for recalling of order of the Tribunal dated 04.01.2016. The provision of rectification of mistake apparent from record is provided under section 254(2) as under: 254. (1) The Appellate Tribunal may, after giving both the parties to the appeal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ometax Act itself, therefore the provisions of Limitation Act are not applicable so far as the limitation provided in the Income-tax Act. This principle is well settled that when there is a provision in special statute, then the general statute is not applicable to the extent of the provision provided in the special statute. We find that prior to the amendment the limitation for rectification of mistake was 4 years as provided under section 254(2) and therefore there was no question of providing any provision or power to the Income Tax Appellate Tribunal to condone the delay after the expiry of such 4 years of limitation. However, in the amended provisions of the Act under section 254(2), the limitation for rectification of mistake apparent from the record has been drastically reduced from 4 years to 6 months and in case of a delay in applying for rectification of mistake apparent from record, the party who is aggrieved by the order of this Tribunal suffering from mistake will be subjected to a great hardship and deprivation of valuable right of pursuing the appeal before the Tribunal. But in the absence of any provision giving power or jurisdiction to this Tribunal to condone the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 254(2) of the Act is no longer res integra. The issue stands covered by the decision of the apex court in Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 which held that though the Tribunal has no power to review its own order, yet it has jurisdiction to rectify any mistake apparent on the face of the record and as a consequence, therefore, the Tribunal can even recall its order. In the above case, before the apex court on October 27, 2000, the Tribunal dismissed the appeal of stock exchange holding that it was not entitled to exemption under section 11 read with section 12 of the Act. On November 13, 2000, the stock exchange filed a rectification application under section 254(2) of the Act before the Tribunal. The Tribunal by its order dated September 5, 2001, allowed the application and held that there was a mistake apparent on the record which required rectification. Accordingly, the Tribunal recalled its order dated October 27, 2000, for the purpose of entertaining the appeal afresh. The Revenue filed a writ petition in the Gujarat High Court challenging the order dated September 5, 2001. The above challenge by the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade in good faith, is still an act capable at legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' This must be equally true even where the 'brand of invalidity' is plainly visible: for there also the order can effectively be resisted in law only by obtaining a decision of the court. Further, the Supreme Court in Sneh Gupta v. Devi Sarup [2009] 16 SCC 194 has observed. We are concerned herein with the question of limitation. The compromise decree, as indicated herein before, even if void was required to be set aside. A consent decree as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963, would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. Therefore, in this case also the period of four years from the date of order sought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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