TMI Blog2017 (7) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the miscellaneous petition filed by the assessee are beyond the period of limitation as provided under section 254(2) and are not maintainable - MP No. 8 to 11/B/2017, And ITA No.1223 to 1226/B/2014 - - - Dated:- 31-3-2017 - SHRI VIJAY PAL RAO, JUDICIAL MEMBER, AND INTURI RAMA RAO, ACCOUNTANT MEMBER For The Appellant : Shri. H. R. Suresh, CA For The Respondent : Smt. Swapna Das, JCIT ORDER Per Vijay Pal Rao, Judicial Member By way of these miscellaneouss petitions, the assessee is seeking recalling of the order dated 07.04.2016 of this Tribunal whereby the appeals of the assessee were dismissed for nonprosecution. 2. The learned counsel for the assessee has submitted that since the appeals of the assessee were dismissed in limine without proceeding on merits. Therefore, there is a mistake apparent on record and consequently the impugned order of the Tribunal may be recalled for giving an opportunity to the assessee for hearing and deciding the appeals on merits. It has been explained that the assessee is a 73 year old lady and does not have access to internet and other modes of communications to seek information such as date of heari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accompanied by a fee of fifty rupees.] 4. The time period within which the mistake apparent from record can be rectified has been reduced from 4 years to 6 months by the amendment vide Finance Act, 2016 w.e.f. 01.06.2016. Thus after the substitution of this provision w.e.f. 01.06.2016, the limitation period for rectification of mistake apparent from record is provided only for 6 months from the end of the month in which the order was passed. In the case in hand, the impugned order was passed by the Tribunal on 07.04.2016 and after the amendment in section 254(4) w.e.f. 01.06.2016, these miscellaneous petitions were required to be filed before 31.12.2016. Prior to the amendment, the limitation was provided as 4 years for rectification of mistake apparent from record and therefore there was no provision in the Income Tax Act for condonation of any delay of any petition for rectification of mistake filed after the said period of 4 years. Even otherwise, the limitation of 4 years was more than the limitation for filing of the suite and as per the general statute i.e., the Limitation Act where the limitation for institution of suit is provided as 3 years onwards from the date of ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Bombay High Court in the case of Bharat Petroleum Corporation Ltd., vs. ITAT and others 359 ITR 371, while dealing with an identical issue has held in paras 16 to 18 as under: 16 It was next contended on behalf of the petitioner that the power of the Tribunal under section 254(2) of the Act is only to rectify an error apparent from the record. It does not empower the Tribunal to recall its earlier order dated December 6, 2007, for which the miscellaneous application was filed on August 6, 2012. It was submitted on behalf of the petitioner that the application under section 254(1) of the Act would be the only provision under which an application could be made for recall of an order, as under section 254(2) of the Act only the order can be rectified but cannot be recalled. We find that there is an error apparent on record and the miscellaneous application is to correct the error apparent from the record. The consequence of such rectification application being allowed may lead to a fresh hearing in the matter after having recalled the original order. However, the recall, if any, is only as a consequence of rectifying the original order. It is pertinent to note that secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007, suffers from an error apparent from the record. 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 the merits after hearing the respondents. In these circumstances, an application for rectification would he 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. In these circumstances, we find no reason to interfere with the order of the Tribunal holding that the miscellaneous application filed by the appellant is barred by limitation under section 254(2) of the Act as i was filed beyond a period of four years from the order sought to be rectified. 18 Before concluding, we would like to make it clear that an order passed in breach of rule 24 of the Tribunal Rules, is an irregular order and not a void order. However, even if it is assumed that the order in breach of rule 24 of the Tribunal Rules is an void order, yet the same would continue to be binding till it is set aside by a competent tribunal. In fact, the apex court in the Sultan Sadik v. Sanjay Raj Subba reported in [2004] 2 SCC 377 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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