TMI Blog2016 (9) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... is miscellaneous application, the assessee wants the Tribunal to review its order which is not permitted under the law - No merit in this miscellaneous application filed by the assessee and dismiss the same. - Decided against assessee. - M.A No. 64/Ind/2016 Arising out of ITA No. 122/Ind/2012 - - - Dated:- 16-9-2016 - Shri D.T. Garasia And Shri O.P. Meena, JJ. Applicant by Shri Girish Agrawal Respondent by Shri K.G. Goyal ORDER Shri D.T. Garasia, The assessee has filed this miscellaneous application u/s 254(2) of the Income Tax Act, 1961, on the ground that the assessee could not attend on the date of hearing because his mother was not well. It was also submitted in the miscellaneous application that the assessee had filed the appeal on 2.3.2012 vide ITA No. 122/Ind/2012 before the ITAT which was fixed for hearing on 2.3.2012. The notice for the date of hearing was served upon the assessee through registered post but on that date his mother was not keeping well and most of the attention of the family was diverted to attending her medical issues and as such the assessee could not attend on the date fixed for hearing. The appeal was, therefore, decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Tribunal has no jurisdiction to entertain this application. We find that section 254(2) of the Act which has been amended with effect from1.6.2016, reads as under :- Orders of Appellate Tribunal. 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. (1A) [***] (2) The Appellate Tribunal may, at any time within 7[six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the 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: Provided further that any application filed by the assessee in this subsection on or after the 1st day of Octob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We further find that under the guise of this miscellaneous application, the assessee wants the Tribunal to review its order which is not permitted under the law. The power of the Tribunal to review its order has been explained by Hon'ble Madras High Court in the case of Express Newspapers Ltd. vs. DCIT (2010) 186 Taxman 111 (Mad.). The relevant portion of the said judgment is reproduced as under :- From the various judgments of the Supreme Court above referred to and other High Courts, it is clear that the Tribunal s power under section 254(2) is not to review its earlier order but only to amend it with a view to rectify any mistake apparent from the record. What can be termed as mistake apparent ? Mistake in general means to take or understand wrongly or inaccurately; to make an error in interpreting; it is an error; a fault, amisunderstanding, a misconception. Mistake in taxation laws has a special significance. It is mostly subjective and the dividing line is thin and indiscernible. Apparent means visible, capable of being seen, easily seen, obvious plain, open to view, evident, appears, appearing as real and true, conspicuous, manifest, seeming. The plain meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of discretion under these provisions, the Court reiterated the principle that the abatement is automatic and not even a specific order is required to be passed by the Court in that behalf. It would be useful to reproduce paragraph 8 of the said judgment which has a bearing on the matter in controversy before us: 8. Inasmuch as the abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed strictly. On the other hand, the prayer for setting aside an abatement and the dismissal consequent upon an abatement, have to be considered liberally. A simple prayer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside the abatement. So also a prayer for setting aside abatement as regards one of the plaintiffs can be construed as a prayer for setting aside the abatement of the suit in its entirety. Abatement of suit for failure to move an application for bringing the legal representatives on record within the prescribed period of limitation is automatic and specific order dismissing the suit as abated is not called for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Ram Sumiran (supra), the Court has not recorded any reasons or enunciated any principle of law for exercising the discretion. The Court, being satisfied with the facts averred in the application and particularly giving benefit to the applicant on account of illiteracy and ignorance, condoned the delay of six years in filing the application. This judgment cannot be treated as a precedent in the eyes of the law. In fact, it was a judgment on its own facts. 12. In the case of Ganeshprasad Badrinarayan Lahoti (supra), the High Court had rejected the application, primarily, on the ground that no separate application had been filed for substitution and for setting aside the abatement. The Court held that the principles of res judicata were not applicable and the application could be filed at a subsequent stage. Thus, the delay was condoned. We must notice here that the earlier judgments of the equi benches and even that of larger benches (three Judge Bench) in the case of Ram Charan (supra) were not brought to the notice of the Court. Resultantly, the principles of law stated by this Court in its earlier judgments were not considered by the Bench dealing with the case of Ganeshpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al construction cannot be equated with doing injustice to the other party. In the case of State of Bihar v. Kameshwar Prasad Singh(2000) 9 SCC 94, this Court had taken a liberal approach for condoning the delay in cases of the Government, to do substantial justice. Facts of that case were entirely different as that was the case of fixation of seniority of 400 officers and the facts were required to be verified. But what we are impressing upon is that delay should be condoned to do substantial justice without resulting in injustice to the other party. This balance has to be kept in mind by the Court while deciding such applications. In the case ofRamlal and Others v. Rewa Coalfields Ltd., AIR 1962 SC 361 this Court took the view: 7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straightjacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22, CPC along with an application under Section 5, Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In paragraph 13 of the judgment, the Court held as under:- 13 (i) The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words sufficient cause in Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant. (ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications. 6. The Hon'ble Supreme Court in the case of Balwant Singh vs. Jagdish Singh Ors. (supra) has discussed all the relevant judgments and held that while condoning the delay, the Court has to take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the appellant acting with normal care and caution. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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