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M/s. Times Guaranty Limited Versus ACIT, Circle 1 (3) , Aayakar Bhavan, Mumbai

2015 (5) TMI 577 - ITAT MUMBAI

Rectification of error - order was pronounced beyond the period of 60 days - Held that:- Merely because, there is a delay due to some exceptional circumstances, would not render the decision of the Tribunal as illegal or void. The contention of the Ld. Counsel that since the order was pronounced beyond the period of 60 days from the date of hearing and hence, the same was barred by limitation has no force and as such is not tenable. We may point out here that the function of ‘pronouncement or or .....

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ng an appeal before the next appellate authority but not with the present application under section 254(2) of the Income Tax Act. The Hon’ble Bombay High Court in the case of ‘Commissioner Of Income-Tax vs Ramesh Electric And Trading Co.’ 1993 (1992 (11) TMI 32 - BOMBAY High Court), while relying upon the decision of ‘T. S. Balaram, ITO v. Volkart Brothers’ [1971 (8) TMI 3 - SUPREME Court] and further relying upon the decisions of the various High Courts has categorically held that the power of .....

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though it may be an error of judgment and under such circumstances the Tribunal has no jurisdiction under section 254(2) to pass the second order. - Decided against assessee. - MA No.21/M/2015 - Dated:- 15-4-2015 - SHRI N.K. BILLAIYA AND SHRI SANJAY GARG, JJ. For The Assessee : Shri K. Shivaram, A.R. For The Revenue : Shri Asghar Zain V.P., D.R. ORDER Per Sanjay Garg, Judicial Member: The present miscellaneous application has been moved by the applicant/assessee seeking recall of the impugned or .....

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f limitation prescribed under Rule 34(5)(c) of the Income Tax (Appellate Tribunal) Rules, 1963. B. The Hon'ble ITAT has not considered and not given any finding on the Factual discrepancies in the order of learned A.O. Assessee had filed partywise chart showing factual discrepancies as per the directions of the Hon'ble ITAT. The factual discrepancies pointed out were on the basis of lease deeds and various details filed before the Assessing Officer at the time of assessment proceedings a .....

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fficer not only confirmed that no details are available in the folder to verify the facts contended by the assessee but further stated that there could be another folder containing the relevant details from which the facts stated by the assessee can be verified, has nowhere in its order dealt with this issue and adjudicated on Ground Nos 4 & 5 of the assessee's grounds of appeal. D. Reliance on the decision of Mak Data (P) Ltd. vs. CIT (2013) 358 ITR 593 (SC) though the said decision was .....

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the order was pronounced after the prescribed period of limitation as prescribed under rule 34(5)(c) of the Income Tax (Appellate Tribunal) Rules, 1963. For the sake of clarity, the said rule 34(5) is reproduced as under: 34….. (5) The pronouncement may be in any of the following manners :- (a) The Bench may pronounce the order immediately upon the conclusion of the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a .....

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e notice of the day so fixed shall be given on the notice board. 3. A perusal of the above reproduced rule 34(5) of the Income Tax (Appellate Tribunal) Rules, 1963 reveals that no limitation period is prescribed for the pronouncement of the order. A careful reading of the above provision reveals that it has been emphasized through this rule that the endeavor shall be made by the bench to pronounce the order within 60 days from the date of hearing. It has been further provided that where it is no .....

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t be pronounced within 60 days from the date of hearing and as such the order was barred by limitation. Such a contention of the Ld. Counsel, in our view, is misconceived. The only inference that can be drawn from the above provision is that the order should be pronounced promptly or as soon as it may be possible. In our view, even if, the order is pronounced beyond the period of 90 days, that can neither be construed to have been vitiated or ceased to have the force of law, nor the same can be .....

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to be exceptional and extraordinarily circumstances of the case. The factors/ circumstances such as one or both the concerned Member being on leave or his/their non availability for some reason for a particular period , his occupation in some other work of equal importance as may be entrusted by the Hon ble President of the ITAT or due to the reason that the concerned Member/Members could not spare time because of hearing or in making decision in any other factually lengthy or involving complic .....

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the discharge of its functions. This Tribunal, thus, has devised its own procedure/conventions for the proper discharge of its functions. One of the conventions/procedures so as to ensure quick disposal of the cases is concerned, every month the detail of the cases pending for pronouncement beyond the period of 30 days/ one month is sought through the registry by the Hon ble President and the reasons for the delay, if any, are also got explained. Even, if the pronouncement of the order, for cer .....

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tter is delayed for certain reasons for a considerable period, the matter is refixed for clarification so that the relevant points be refreshed in the memory and if so required matter can be heard afresh. This all depends upon the satisfaction of the Bench itself as to whether it is in a position to pronounce the order or that some clarifications are required or that a fresh hearing is required. Further the word ordinarily as mentioned in clause (c) of rule 34(5) is sufficient to explain that th .....

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e Tax Appellate Rules, 1963, in case where the order is not pronounced immediately on conclusion of the hearing and no date of pronouncement is given then every endeavour shall be made by the Bench to pronounce the order within a period of 60 days from the date on which the hearing of the case was concluded. This Sub-rule further facilitate provides that the pronouncement of the order after the period of 60 days ordinarily be within further period of 30 days provides that due notice of the date .....

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lso directs that the order should be pronounced within a period three months from the date on which the case is closed for judgment. It is pertinent to note that in the case in hand, there are certain developments with respect to the long leave and transfer of one of the Member constitution the Bench who have heard the appeal. It is transpired from the record that one of the Members Shri D.K. Shrivastava, AM, seating in the Beach who heard the appeal of the assessee was transferred from Mumbai B .....

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sessee. Merely because, there is a delay due to some exceptional circumstances, would not render the decision of the Tribunal as illegal or void. Therefore, in our view when the assessee has not brought on record anything to establish prima facie that any material fact or contention was left without considering by the Tribunal while passing the impugned order. Accordingly, we do not agree with the contentions of the learned counsel for the assessee on this point, the same is rejected. 4.1 Under .....

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rder was pronounced beyond the period of 60 days can not validly be raised in a petition u/s 254 of the Act, as the same can not be said to be an error apparent on record. 5. So far as the other contentions raised by the Ld. Counsel vide para Nos. B, C, D & E are concerned, we find that the Ld. Counsel has raised the points about the factual and legal merits of the case which cannot be termed as an error apparent on record and thus would not fall within the purview of the provisions of secti .....

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said decision was not applicable to the case of the assessee or how the application of the said decision has caused any prejudice to the assessee. The decision of the Hon ble Supreme Court is a widely published decision and is binding on all the subordinate courts and Tribunals of the country and has been rightly relied upon in this case of the assessee. The Tribunal, vide impugned order, has not only considered the submissions of the assessee but has given a categorical finding on all of the i .....

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