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2018 (2) TMI 666

ation is barred by limitation and following the earlier order of this Tribunal in case of ITO vs. Shri Ram Ratan Modi [2018 (2) TMI 589 - ITAT JAIPUR) we dismissed the miscellaneous application as not maintainable being barred by limitation. - M/A. No. 12/JP/2018 (Arising out ITA No. 454/JP/2015) - Dated:- 6-2-2018 - Shri Vijay Pal Rao, JM And Shri Bhagchand, AM Assessee by : Shri Yogesh Kumar Sharma (C.A.) Revenue by : Smt. Seema Meena (JCIT) ORDER Per : Vijay Pal Rao, J. M. This miscellaneous application is filed by the assessee for seeking recalling the order of this Tribunal dated 07.04.2017 whereby the appeal of the assessee was dismissed for non prosecution. 2. At the outset, we note that the miscellaneous application of the assessee is beyond the period 6 months from the end of the month in which the order was passed by the Tribunal. The miscellaneous application was filed by the assessee on 19.01.2018. The ld. AR of the assessee has submitted that the assessee did not receive the impugned order of the Tribunal till 08.09.2017 and therefore, the assessee is seeking condonation of delay in filing the present miscellaneous application. 3. On the other hand, ld. DR has objected .....

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r passed by it under sub-section (1), and 73shall make such amendment73 if the mistake is brought to its notice by the assessee or the 74[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 : 75[Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] 76[(2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) 77[or sub-section (2)] 78[***] of section 253 : 79[Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceedings relating to an appeal filed under sub-section (1) of section 253, for a period not exceeding .....

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some has not been done till the amendment came into force extinguishing the right to file an appeal. Therefore, the Hon ble High Court has observed that the amendment in the said provisions is not applicable with retrospective effect otherwise it would extinguish the right of the applicant with retrospective effect. Hence, to the extent of the applicability of the amendment prospectively we do agree with the ld. DR, however since the amendment came into forced w.e.f. 01.06.2016 then after the substitution of the provision w.e.f. 01.06.2016 the limitation period for rectification of mistake would be available only up to 6 months from the end of the month in which the order was passed. In the case in hand since the order was passed prior to the amendment, therefore, the said period of limitation will be available to the assessee from the date of amendment i.e. on 01.06.2016 for a period 6 months. Thus, the present miscellaneous petition filed by the Revenue on 22.05.2017 is beyond the period of limitation which has expired on 30.11.2016. We may clarify that in case the impugned order is prior to the amendment w.e.f. 01.06.2016 then the limitation period of 6 months would reckon from .....

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e 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 suit 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 cause of action arose and therefore there was no provision even in the Limitation Act for condonation of delay in respect of delay in filing the suit. Since the limitation for rectification 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 there was no question of providing any provision or power to the Income .....

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der 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 section 254(2) of the Act does not prohibit the recall of an order. In fact the power/jurisdiction of the Tribunal to recall an order on rectification application made under section 254(2) of the Act is no longer res integra. The issue stands covered by the decision of the apex court in Asstt. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 which held that though the Tribunal has no power to review its own order, yet it has jurisdiction to rectify any mistake apparent on the face of the record and as a consequence, therefore, the Tribunal can even recall its order. In the above case, 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 sec .....

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o 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 observed as under: "Patent and 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' is plainly visible: for there also the order can effectively be resisted in law only by obtaining a decision of the court." Further, the Supreme Court in Sneh Gupta v. Devi Sarup [2009] 16 SCC 194 has observed. "We are concerned herein wit .....

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