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TMI Blog2020 (2) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... d of six months from the end of the month in which the order was passed is not to be construed in such a manner that there can not be any extension of time beyond the said period of six months. This is so because the assessee or the AO can only bring the mistake to the notice of the Tribunal. The assessee or the AO has no control over the Tribunal. For one reason or the other, the Tribunal may not be in a position to pass the order under Section 254(2). For the inability of the Tribunal to pass such an order within the period provided, neither the assessee nor the revenue should suffer. What therefore becomes relevant is that the assessee or the Assessing Officer should bring the mistake to the notice of the Tribunal within the limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax-7, Mumbai assailing the legality and correctness of order dated 1st February, 2019 passed by the Income Tax Appellate Tribunal, Bench B , Mumbai (briefly the Tribunal hereinafter) in MA No.483/M/2018 for the assessment year 2006-07, whereby the earlier order of the Tribunal dated 10th January, 2018 passed in Income Tax Appeal No.3910/Mum/2010 has been recalled and the appeal has been directed to be placed for hearing afresh. 3. It may be mentioned that respondent No.2 i.e. the assessee had preferred Income Tax Appeal No. 3910/Mum/2010 for the assessment year 2006-07 before the Tribunal against the order passed by the Commissioner of Income Tax (Appeals)-13, Mumbai dated 6th January, 2010. By order dated 10th January, 2018, Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation. Further submission of Mr.Mohanty is that in exercise of the power conferred under sub-section (5) of Section 255 of the Act, Income Tax (Appellate Tribunal) Rules, 1963 (briefly the Rules hereinafter) have been framed. Rule 24 of the said Rules provides that in case of an ex-parte order if the appellant appears otherwise and satisfies the Tribunal that there was sufficient cause for his non-appearance when the appeal was called for hearing, the Tribunal shall make an order setting aside the ex-parte order and restore the appeal. However, his contention is that though time limit is not provided under Rule 24, the time limit prescribed under Section 254 (2) has to be strictly adhered to as the Rules cannot contravene or operate be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was substituted by the Finance Act, 2016 with effect from 1st June, 2016. Therefore, for the assessment year under consideration the limitation period may be construed to be four years from the date of the order. Even otherwise, if a view is taken that since the impugned order was passed by the Tribunal on 1st February, 2019, the substituted limitation period of six months would be applicable, then also it is seen that the said period of six months was available to respondent No.2 till 31st July, 2018. Respondent No.2 had filed the application for recall of the ex-parte order on 9th July, 2018 within the limitation period of six months. However, Tribunal passed the impugned order only on 1st February, 2019. 11. At this stage, we may adve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 254(2). For the inability of the Tribunal to pass such an order within the period provided, neither the assessee nor the revenue should suffer. What therefore becomes relevant is that the assessee or the Assessing Officer should bring the mistake to the notice of the Tribunal within the limitation period. 14. Rule 24 of the Income Tax (Appellate Tribunal) Rules, 1963 (Rules) is relevant. Rule 24 reads as under :- 24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent: Provided that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. Such a power inheres in every Tribunal. 18. As candidly pointed out by Mr.Mohanty, with regard to the pre-amended provision of Section 254(2), Supreme Court in Sree Ayyanar Spinning and Weaving Mills Limited (supra), had accepted the position that such an order can be recalled beyond the then prescribed period of four weeks, provided the application is made within the limitation period. In fact, Rajasthan High Court in Harshavardhan Chemicals and Minerals Limited Vs. Union of India, 256 ITR 767 took the view that if the assessee had moved the application within four years from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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