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2017 (7) TMI 434 - ITAT BANGALORE

2017 (7) TMI 434 - ITAT BANGALORE - Tmi - Rectification of mistake - condonation of delay in filing application / petition - Held that:- We have no doubt in our mind that there is an apparent mistake in the order dated 07.04.2016 as the Tribunal has not decided the appeals of the assessee on merit but dismissed the same inlimini for want of prosecution. However, the question of rectification of mistake cannot be entertained until and unless the Miscellaneous Petition filed by the assessee is fou .....

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e case of Bharat Petroleum Corporation Ltd., Vs. ITAT and others (2013 (10) TMI 1085 - BOMBAY HIGH COURT) we hold 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, JCI .....

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d 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 hearing etc., and since the assessee did not receive notice of hearing of the appeal on 07.04.2016, therefore, the assessee could not communicate the date to the representative to appear before this Tribunal. The learned AR has thus pleade .....

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ion 254(2), the mistake in the order of the Tribunal can be rectified within the period of 6 months and since the assessee has filed these miscellaneous applications after the expiry of 6 months of limitation period, therefore the miscellaneous applications are not maintainable and liable to be dismissed in limine. 4. We have considered the rival submissions and carefully perused the relevant record. The assessee has filed these miscellaneous petitions on 13.01.2017 for recalling of order of the .....

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section (1), and shall make such amendment51 if the mistake is brought to its notice by the assessee or the 52[Assessing] Officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: 53[Provided furthe .....

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nths 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 .....

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of mistake is provided in the Income Tax Act itself, therefore the provisions of Limitation Act are not applicable so far as the limitation provided in the Income Tax Act. This principle is well settled that when there is a provision in special statute, then the general statute is not applicable to the extent of the provision provided in the special statute. We find that prior to the amendment the limitation for rectification of mistake was 4 years as provided under section 254(2) and therefore .....

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ffering from mistake will be subjected to a great hardship and deprivation of valuable right of pursuing the appeal before the Tribunal. But in the absence of any provision giving power or jurisdiction to this Tribunal to condone the delay in filing the petition for rectification of the mistake apparent from the record, the Tribunal has no option but to proceed strictly as per the provisions as provided in the statute. 5. We have no doubt in our mind that there is an apparent mistake in the orde .....

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one the delay under the Income Tax Act, it may be a case of omission in the provision of Act which cannot be supplied by us when there is no ambiguity in the provisions of section 254(2) of the Act. The Hon 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 A .....

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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 section 254(2) of the Act does not prohibit the recall of an order. In fact the power/jurisdiction of the Tr .....

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, before the apex court on October 27, 2000, the Tribunal dismissed the appeal of stock exchange holding that it was not entitled to exemption under section 11 read with section 12 of the Act. On November 13, 2000, the stock exchange filed a rectification application under section 254(2) of the Act before the Tribunal. The Tribunal by its order dated September 5, 2001, allowed the application and held that there was a mistake apparent on the record which required rectification. Accordingly, the .....

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ssee's) appeal overlooked the binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by .....

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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 .....

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latent invalidity In a well known passage Lord Radcliffe said: 'An order, even if not made in good faith, is still an act capable at legal consequences. It bears no brand of invalidity upon its forehead.. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' This must be equally true even where the 'brand of invalidity .....

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