TMI Blog2018 (7) TMI 1917X X X X Extracts X X X X X X X X Extracts X X X X ..... M CORPORATION LIMITED VERSUS INCOME TAX APPELLATE TRIBUNAL AND OTHERS [2013 (10) TMI 1085 - BOMBAY HIGH COURT] the period of four years from the date of order sought to be rectified/recalled will apply as provided in Section 254(2) of the Act. This is so even if it is assumed that the order dated 6 December 2006 is a void order. The Tribunal has no power in terms of Rule 24 of the Tribunal Rules to dismiss an appeal before it for non prosecution. The Miscellaneous application for recall of an order falls under Section 254(2) of the Act and not under Section 254(1) of the Act M.A filed beyond the limitation period of six months was dismissed. We are constrained to dismiss the miscellaneous application as barred by limitation. - M.A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Bharat Petroleum Corpn. Ltd vs. ITAT (2013) 359 ITR 371, while dealing with an identical issue i.e. period of 4 years for filing of the application u/s 254(2) as was available prior to the amendment, has held 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 6 December 2007 for which the miscellaneous application was filed on 6 August 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and held that there was mistake apparent on the record which required rectification. Accordingly, the Tribunal recalled its order dated 27 October 2000 for the purpose of entertaining the appeal afresh. The revenue filed a writ petition in the Gujarat High Court challenging the order dated 5 September 2001. The above challenge by the revenue was turned down by the Gujarat High Court. The revenue carried the matter in appeal to the Apex Court which also dismissed the appeal of the revenue. The Apex Court observed that the Tribunal in its original order while dismissing the Stock Exchange (assessee's) appeal overlooked binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under Section 254(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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/s. Sanjay Raj Subba reported in 2004(2) SCC 277 has 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 of 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 impecc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the reasons given herein above, we find the Tribunal was correct in dismissing the Miscellaneous Application by its order dated 10 April 2013 as being beyond the period of four years as provided under Section 254(2) of the Act. 21) Accordingly, the petition is dismissed with no order as to costs . This decision was followed by the Coordinate Bench of the Tribunal at Jaipur in the case of Vinod Singh, Jaipur vs. ITO, Jaipur dated 6.2.2018 in MA No.12/JP/2018 in ITA No.454/JP/2015, wherein under similar circumstances as in the case before us, the M.A filed beyond the limitation period of six months was dismissed. In view of the same, we are constrained to dismiss the miscellaneous application as barred by limitation. 6. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
