Home Case Index All Cases Income Tax Income Tax + HC Income Tax - 2013 (10) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (10) TMI 1085 - HC - Income TaxPowers of ITAT the Appellate Tribunal to dismiss an appeal for want of prosecution – Miscellaneous application seeking recalling of order after 4 years was also dimissed by the tribunal - Held that:- Reliance has been placed upon the judgment in the case of Chemipol vs. Union of India [2009 (9) TMI 177 - BOMBAY HIGH COURT] - Though every Court or Tribunal has an inherent power to dismiss the proceeding for non prosecution yet this inherent power is lost where the statute requires the Court or the Tribunal to hear the appeal on merits. In this case Rule 24 of the Tribunal Rules mandates the Tribunal to decide the appeal on merits even in absence of the appellant after hearing the respondents. In view of the above, Tribunal did commit an error in passing the order dated 6 December 2007 in dismissing the appeal on the ground of want of prosecution. Application of section 254(1) or section 254(2) for rectification in the order - Whether an application to set right the above error in the order dated 6 December 2007 would be an application to correct the same under Section 254(1) of the Act as contended by the petitioner or under Section 254(2) of the Act as contended by the revenue – Held that:- if there is an error apparent on the face of the record, Section 254(2) of the Act alone is applicable. Where Parliament has provided a specific provision in the Act to deal with a particular situation, it is not open to ignore the same and apply some other provision. Section 254(2) of the Act empowers the Tribunal to correct/rectify its order only within four years from the date of the order which is sought to be rectified. Is there limitation applicable, if an application is to be filed against the order, which is void – Held that:- Reliance has been placed on the Apex Court judgment in the case of Sneh Gupta v/s. Dev Sarup [2009 (2) TMI 744 - SUPREME COURT]., wherein it has been held that It is not the law that where the decree is void, no period of limitation shall be attracted at all - Therefore, in the present case also the period of four years from the date of order sought to be rectified/recalled will apply as provided in Section 254(2) of the Act. This is so even if it is assumed that the order dated 6 December 2006 is a void order - 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 merits after hearing the respondents. In these circumstances, an application for rectification would lie 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 - No reason to interfere with the order of the Tribunal holding that Miscellaneous Application filed by the appellant is barred by limitation under Section 254(2) of the Act as it was filed beyond a period of four years from the order sought to be rectified.
|