TMI Blog2017 (10) TMI 633X X X X Extracts X X X X X X X X Extracts X X X X ..... slation said so either expressly or by necessary intendment. An intention in interfere or impair a vested right cannot be presumed unless such intention be clearly manifested by the express words or by necessary implication. Applying the proposition of law laid down by Hon’ble Supreme Court, we can safely infer that right to appeal which includes right to file rectification application arises at the time of passing the original order and such right can only be taken away when there is a retrospective amendment. In the instant case before us, the amendment so brought in u/s.254(2) was prospective and applicable to the orders passed after 01/06/2016, and not the orders passed prior to 01/06/2016. Undisputedly in the instant case the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to consider miscellaneous application in so far as Section 254(2) of Income Tax Act was amended w.e.f. 01/06/2010 whereby power of ITAT to consider mistake apparent from record was restricted to six months from the end of month in which the order was passed. As per learned DR the order in respect of which miscellaneous applications are preferred were passed on 06/09/2013 whereas these miscellaneous applications have been preferred in December 2016 i.e., after amendment, hence ITAT has no power under the Act to consider the miscellaneous applications. Learned DR placed on record the decision of the ITAT Mumbai Bench dated 25/04/2017 in the case of Lavanya Land Private Ltd., wherein Tribunal have considered as to whether amendment applies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. It was further contended by learned AR that that the amendment by the Finance Act, 2016 with effect from 01 June 2016 reducing the time limit prescribed u/s. 254(2) to 6 months from the end of the month in which the Order sought to be rectified is passed is not applicable in the instant case for the following reasons: 1. Right to appeal or file a rectification application as in the present case is a substantive right and not a procedural right,and therefore the same has to be applied prospectively and not retrospectively. The Apex Court has consistently taken this view and which view has now been reiterated in the latest decision of the Apex Court in the case of K. Raveendranathan Nair v/s. CIT (in Civil Appeal No. 3131 of 2006) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. No doubt, before October 01,1998, in the absence of any statutory right of appeal to the High Court, there was no such vested right. At the same time, the moment Section 260A was added to the statute, right to appeal was recognized statutorily. Therefore, as already pointed out, in respect of those proceedings where ossessment orders were passed after October 01, 1998. vested right of appeal in the High Court had accrued. Same was the position qua Department in respect of those cases where the demand raised by the Department stood negatived by the appellate authority after October 01,1998. 14) In the present case, as noted above, when Section 260A of the IT Act was introduced by way of amendment with effect from October 01, 1998, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such right can only be taken away when there is a retrospective amendment. In the present case, admittedly is prospective and applicable from 01 June 2016. Here, it may be noted that the decision of the Apex Court was in the context of the amount of court fees to be payable for filing an appeal before the High Court under the Income-tax Act, 1961. The contention of the revenue was that the amount of court fee would be determined as per the law as it is stood at the time of filing of the appeal and not when the original order was passed. The Supreme Court rejected the contention of the revenue that that the right of appeal being a substantive right, the same gets crystallised when the original order was passed. The assessee submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt legislation said so either expressly or by necessary intendment. An intention in interfere or impair a vested right cannot be presumed unless such intention be clearly manifested by the express words or by necessary implication. 9. Applying the proposition of law laid down by Hon ble Supreme Court, we can safely infer that right to appeal which includes right to file rectification application arises at the time of passing the original order and such right can only be taken away when there is a retrospective amendment. In the instant case before us, the amendment so brought in u/s.254(2) was prospective and applicable to the orders passed after 01/06/2016, and not the orders passed prior to 01/06/2016. Undisputedly in the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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