TMI Blog2008 (5) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The learned CIT(A) upheld the stand taken by the AO. The Tribunal vide order dt. 17th Sept., 1990, upheld the order passed by the lower authorities for the reasons mentioned in the order. Another disallowance of Rs. 14,04,483 on account of damages claimed was rejected by the AO on the ground that the liability to pay damages to foreign party did not crystallise in the year under consideration and, therefore, the amount of Rs. 14,04,483 was not deductible. The order passed by the authorities below was upheld by the Bench. Another disallowance agitated before the Tribunal was in respect of foreign travel expenses of Shri Pawan Goel amounting to Rs. 17,122. This disallowance was confirmed by the Tribunal by holding "merely because travel was undertaken it does not automatically conclude that this was taken in regard to the settlement of claim preferred by the assessee". The last disallowance confirmed by the Tribunal was in respect of Rs. 80,000 made under s. 69 of the Act. The addition made by the AO was deleted by the Tribunal. 3. The assessee thereafter filed Ref. Appln. No. 1875 (Del) of 1990 [ITA No. 5121/Del/1989 for the asst. yr. 1988-89] before this Tribunal. The referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w to rectify a mistake apparent from the record, the Tribunal could amend an order made earlier under s. 254(1). It was further observed that where prima facie without any long drawn process or reasoning a mistake was shown about which there could not be conceivably more than one opinion, subsequent Bench might exercise jurisdiction under s. 254(2) of the Act. In other words, the only jurisdiction with the Tribunal was of rectification of mistake apparent from record. It was further observed that the legal position of law was settled so far as the powers of the Tribunal were concerned. The Tribunal has no power of review and a subsequent Bench of the Tribunal could not sit in judgment over the order passed by the earlier Bench. 5. The assessee thereafter, again filed the second miscellaneous application against MA No. 203/Del/1997 dt. 24th Feb., 2006. This miscellaneous application was rejected by the Delhi Bench "E", vide order dt. 15th Sept., 2006, by observing as under: "We have heard the rival submissions and perused the material available on record. We find that the Hon'ble Orissa High Court in the case of CIT vs. ITAT Ors. (1992) 102 CTR (Ori) 296 : (1992) 196 ITR 838 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee could not be made to suffer for the mistakes of the Tribunal. The second rectification application filed on 10th March, 2006, within a few days of the order dt. 24th Feb., 2006, was erroneously rejected on the ground that the Tribunal could not review its own order. The Tribunal neither in its original appellate order nor in its both the rectification orders considered the entire evidence. He further submitted that the present miscellaneous application has been filed on 18th Oct., 2006, against the rejection of order dt. 15th Sept., 2006, in the shortest possible time of about one month and the petitioners have been very alert and not at all responsible for the default, if any, occurred. For condonation of delay he placed reliance on the following decisions: (1) AIR 1988 SC 1560 "When these factors are brought to the notice of this Court, even if there are any technicalities, this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever, a blot on justice. It has been said long time ago that 'actus curiue neminam gravabit' an act of Court shall prejudice no man. This maxim is founded upon justice and goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied, it would not be time-barred, if, as the High Court pointed out, the date of the appellate order was taken into consideration." (8) AIR 1983 SC 954 at p. 957 "For the proposition that a litigant cannot be penalized on the pain of being thrown out of the Court on the technical grounds. Justice cannot be a playground by kicking the ball from one Court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks." (9) (1985) 4 ECC 270 (Bom) "Orders of the excise authorities without jurisdiction are null and void since they failed to take into account material evidence before them-Civil Court's jurisdiction to try case not ousted." (10) AIR 1976 SC 426 "If erroneous law is found as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom. A minimal judicialisation by statement. laconic or lengthy, of the essential law that guides the decision, is not only reasonable and desirable but has, over the ages, been observed by the arbitrators and quasi judicial Tribunals as a norm of processual justice." (11) CIT vs. Autokast Ltd. (1997) 138 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de for condonation of delay, the same cannot be allowed. She further submitted that non-consideration of an argument does not amount to mistake. She placed reliance on the following decisions: (i) Jain Dharamshala Charitable Trust vs. CIT (1994) 121 CTR (Del) 86 No question of law arose out of the Tribunal's order as there was no error apparent from record. In the garb of an application for rectification, the assessee wanted to reopen and reargue the whole matter, which was beyond the scope of s. 254(2); (ii) Gayways Publicity (P) Ltd. vs. CIT (1995) 211 ITR 506 (Del) If the assessee was aggrieved by the finding of the Tribunal, then it ought to have challenged the original order by filing an application under s. 256(1) which it did not do. (iii) CIT Anr. vs. ITAT Anr. (1994) 210 ITR 397 (Ori) The power under s. 254(2) does not clothe the Tribunal with the jurisdiction to review its earlier decision or to rewrite a fresh judgment. (iv) CIT vs. Ramesh Electric Trading Co. (1993) 203 ITR 497 (Bom) Under s. 254(2) the power of rectification can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 209 : (1992) 198 ITR 297 (SC) for the proposition that a decision rendered by a Court should be read in the context in which it was rendered. Therefore, the decisions relied upon by the learned Authorised Representative for the assessee cannot be applied to the facts of the present case. The learned Departmental Representative further submitted that the Tribunal has no power to condone the delay, if the application is filed beyond the period of four years. 9. We have heard both the parties and considered the relevant material and judicial pronouncements referred to by both the parties carefully. There is no dispute that present application has been filed after expiry of period of 16 years ,from the date of order sought to be rectified. Sec. 254(2) reads as under: "(2) The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s. (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the AO: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance on several decisions referred to above in support of his contention that delay in filing of application for rectification dt. 15th Oct., 2006, should be condoned. We have gone through the ratios of the decisions referred by the learned Authorised Representative of the assessee carefully. It is not clear under what context these decisions were rendered. It is also not clear whether relevant statute under which the said decisions were rendered, contained the provisions relating to limitation or were governed by the provisions of the Limitation Act, 1963. No such information has been provided in this regard by learned counsel of the assessee. Moreover as pointed out by the learned senior Departmental Representative that the ratio of a decision cannot be applied without reference to the context under which the same was rendered. We are inclined to agree with her in this regard. The Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works (P) Ltd. at p. 320 observed as under: "............It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter before us does not relate to an appeal where the Tribunal is empowered to condone the delay under s. 253(5) of the Act. Thus the decision in the case of Collector, Land Acquisition vs. Mst. Katiji relied upon by the assessee is not relevant to miscellaneous application seeking condonation of delay as this Tribunal has no power to condone the delay under s. 254(2) of the Act. Other decisions relied upon by the learned Authorised Representative of the assessee referred to above are not relevant at all as the facts of the case and the context in which they have been rendered, are not known. Accordingly, in view of the decision of the Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works (P) Ltd. the ratios of various decisions cannot be applied to condone the delay. 13. Another contention of the learned Authorised Representative of the assessee that the present application for rectification has been filed immediately after the decision of the Tribunal on the second rectification application is not relevant. The period of four years has to be considered from the date of the original order i.e., 17th Sept., 1990, and not from the date on which the second applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principle of equity and justice or on the basis of theory that justice should be done. The time-limit of four years to make rectification under s. 254(2) applies to both suo motu action of the Tribunal as well as action taken on request of the parties. Since in this case the miscellaneous application seeking the rectification of order passed by the Tribunal under s. 254(1) has been filed after the expiry of a period of 16 years and since there is no provision under the IT Act and the provisions of s. 5 of the Limitation Act are not applicable to proceedings before quasi judicial authorities like the Tribunal, condonation of delay cannot be allowed. Therefore, the miscellaneous application filed by the assessee is dismissed as barred by limitation. 15. Since we have dismissed the application on the grounds of limitation, we do not feel it necessary to decide the rectification application on merits. Misc. Appln. No. 110/Del/2005: 16. The assessee has also filed MA No. 110/Del/2005 (filed on 20th April, 2004-Diary No. 1228 dt. 21st April, 2004) against the order passed by the Tribunal in the case of Rahuljee Co. Ltd. vs. Asstt. CIT in ITA No. 7074/Del/1992 dt. 30th June, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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