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TMI Blog2020 (8) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... y, in filing the miscellaneous application and consequently, the Tribunal has no jurisdiction/power to condone the delay in filing the miscellaneous application. Accordingly, when there is no provision for condonation of delay for filing of the miscellaneous application, then the miscellaneous application filed belatedly is not maintainable being barred by limitation provided under section 254(2) of the Act. Miscellaneous application so filed by the assessee is dismissed. - M.A. No. 55/JP/2018 (Arising out of ITA No. 1021/JP/2016) - - - Dated:- 24-8-2020 - SHRI VIJAY PAL RAO, JM And SHRI VIKRAM SINGH YADAV, AM Assessee by : Sh. P. C. Parwal (CA) Revenue by : Smt. Rumi Pal (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. The present miscellaneous application has been filed by the assessee against the order passed by the Co-ordinate Bench decision in ITA No. 1021/JP/2016 dated 20/06/2017. 2. At the outset, it is noted that order was passed by the Co-ordinate Bench decision on 20/06/2017 and the miscellaneous application has been filed by the assessee on 02.05.2018 which is beyond the limitation period as provided u/s 254(2) of the Act. 3. In this rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation period of six months of moving the application from the end of the month in which the order is passed, therefore, the present miscellaneous application filed belatedly is not maintainable. The limitation period is provided in the Act itself and there is no provision for condonation of delay, if any, in filing the miscellaneous application and consequently, the Tribunal has no jurisdiction/power to condone the delay in filing the miscellaneous application. The Tribunal has taken a consistent view on this issue and in case of Shri Vinod Kumar Singh vs. ITO in M.A. No. 12/JP/2018, the Coordinate 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] 76[(2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) 77[or sub-section (2)] 78[***] of section 253 : 79[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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o forced w.e.f. 01.06.2016 then after the substitution of the provision w.e.f. 01.06.2016 the limitation period for rectification of mistake would be available only up to 6 months from the end of the month in which the order was passed. In the case in hand since the order was passed prior to the amendment, therefore, the said period of limitation 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date of cause of action arose and therefore there was no provision even in the Limitation Act for condonation of delay in respect of delay in filing the suit. Since the limitation for rectification of mistake is provided in the Income-tax 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 Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pertinent to note that section 254(2) of the Act does not prohibit the recall of an order. In fact the power/jurisdiction of the Tribunal to recall an order on rectification application made 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 377 observed as under: Patent and latent invalidity In a well known passage Lord Radcliffe said: 'An order, even if not made 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 per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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