TMI Blog2013 (5) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... and consequently, dismissed. - Miscellaneous Application No.514/Mum/2012 - - - Dated:- 10-4-2013 - Shri Vijay Pal Rao, JM And Shri Rajendra, AM,JJ. For the petitioner : Shri J. D. Mistri For the Respondent : Shri Mohit Jain ORDER Per Vijay Pal Rao, JM. This Miscellaneous Application by the assessee is directed against the order of this Tribunal dated 6th Dec 2007 whereby the appeal of the assessee was dismissed in limine for want of prosecution. 2 Since this Miscellaneous Application has been filed after the expiry of four years; therefore, the issue of limitation has arisen in respect of the maintainability of the application. 2.1 Shri Jahangir D J Mistri, the Senior counsel on behalf of the assessee has submitted that the period of limitation provided u/s 254(2) is not applicable for recalling of the impugned order as per Rule 24 of the Income Tax Appellate Tribunal Rules. He has relied upon the decision of the Hon'ble Allahabad High Court in the case of Income-tax Officer v. Singar Singh (S.B.) and Sons, reported in 75 ITR 646, and submitted that as held by the Hon'ble High Court, the provisions of section 254(2) does not apply to the proceedings f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. Thus, the ld DR has submitted that the application of the assessee is not maintainable being barred by limitation. 3 We have considered the rival submissions and carefully perused the relevant material on record; decisions relied upon by the parties as well as the provisions under the statue. There is no dispute on the fact that the present Miscellaneous Application has been filed by the assessee after the expiry of four years and also there is no dispute regarding the knowledge and receipt of the impugned order of the Tribunal by the applicant. The jurisdiction of the Tribunal to dispose off the appeal is conferred by section 254(1) which reads as under: "254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. 3.1 Rules 24 and 25 of the Income Tax Appellate Tribunal Rules provide procedure for the proceedings in a situation when the appellant or his/her representative did not appear on the date of hearing of the appeal. In such cases, the Tribunal may hear the appeal exparte and dispose off on merits. Thus, apart from passing such order as it think fit, the Tribunal may dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not really speaking a power to review. The question before the Hon'ble High Court was whether rectification of such an error amounts to review of the order or not and therefore, no issue of any limitation was for consideration before the Hon'ble High Court in the said decision. 4.1 It is pertinent to note that in the case in hand, the impugned order dated 6.12.2007 does not suffer from any such a mistake or mischief committed by the Tribunal itself so as to rectify the same with the object to avoid any prejudice to the party which is not responsible for it. Rather, the impugned order has been passed by the Tribunal because the assessee failed to appear before the Tribunal on the day when the appeal of the assessee was called for hearing. The assessee has filed two affidavits in support of the Miscellaneous Application. The averments in both the affidavits are identical as contained in para 4 of the affidavit as under: "4. That the aforesaid appeal was fixed for hearing on 4.12.2007 and on such date the deponent left BPCL office situated at Ballard Estate, Mumbai at around 10.10 am by taxi to appear before the Hon'ble Tribunal on the date fixed but unfortunately the deponent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Where, on the day fixed for hearing or any other day to which the hearing may be adjourned, the appellant appears and the respondent 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 appellant; Provided that where an appeal has been disposed of as provided above and the respondent appears afterwards and satisfied the Tribunal that there was sufficient cause for his non appearance when the appeal was called on for hearing, the Tribunal shall make an order setting aside the exparte order and restore the appeal." 5.3 Therefore, the controversy before the Hon'ble Kerala High Court was only regarding the provisions of Rule 25 prescribing the hearing of appeal exparte; but did not prescribe the setting aside the order passed on merit and in such a situation, the Hon'ble High Court has held that the Tribunal has inherent powers to set aside such an order in the interest of justice. Therefore, the said decision of the Hon'ble Kerala High Court would not help the case of the assessee. 6 In the case of Khushalchand B. Daga v. Surendran (T.K.) (supra), the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal ought to have directed the appeal to be reheard on merits, even on the basis that its previous order dated 24th October, 1961, was an erroneous order or an order containing an error apparent on the face of the order. In view of the conclusion which I have reached on the first two submissions made by Mr. Nariman, I do not think it is necessary to go into the question as to whether the miscellaneous application preferred by the applicant for rectification of the mistake was barred by limitation or not."...... 6.2 Thus, it is clear that the said decision of the Hon'ble jurisdictional High Court is based on the decision of the Hon'ble Supreme Court whereby the Rule 24 was held as ultra vires being repugnant to the provisions of sec. 33(4). The Hon'ble High Court has left upon the issue of limitation as no finding was given on the said issue. Since the Rule 24 has been amended and as per the amended Rules, there is a provision for setting aside/recalling of the exparte order whereby the appeal of the assessee was dismissed for non prosecution. 6.3 The issue before us is not regarding the validity of Rule 24; rather, the assessee itself has filed the present application under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y become barred by limitation under s. 149 as on 1st April, 1989, for which the relevant period of limitation was four years or seven years depending upon the quantum of liability to tax. There was. an amendment in s. 150 lifting an embargo for period of limitation to enable the reopening the assessment not only on the basis of order passed in proceedings under the IT Act but also on the basis of an order of the Court in any proceedings under any law. This provision was prospective and in that context the Supreme Court held that the amendment did not enable the authorities to reopen assessments which had become final due to the bar of limitation prior to 1st April, 1989, and this position was equally applicable to reassessments proposed on the basis of orders passed under the IT Act or under any other law. The Court held that the provisions of a fiscal statute, more particularly, one regulating the period of limitation, must receive a strict construction. The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigants for an indefinite period on future unforeseen events. Proceedings which had attained fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of condonation of delay. In the absence of any provision of condonation of delay with respect to the proceedings for setting aside/recalling of the amendment of the order of the Tribunal, the Miscellaneous Application filed beyond four years deserves to be dismissed as time barred. 8.2 Even for the sake of argument, if the contention of the ld Sr counsel is accepted that the proceedings for recall the exparte order do not fall u/s 254(2) and therefore, the limitation provided under this section does not apply to the proceedings, then in our view, the limitation as provided under the Limitation Act for setting aside the exparte order whereby the case of the appellant is dismissed for default would be applicable in such proceedings. 8.3 The limitation for filing of application under order (9) Rule (9) of CPC for setting aside the exparte order is 30 days. The assessee has neither filed any application for condonation of delay nor explained the cause of such inordinate delay of more than 4 years. In the affidavit, the assessee has not explained the cause and period of delay in filing the present Miscellaneous Application. Further, this is not a case of non receipt of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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