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TMI Blog2018 (12) TMI 1635X X X X Extracts X X X X X X X X Extracts X X X X ..... 's letter dated 10.01.2018. It was communicated to the Pr.CIT-1, Pune on 11.01.2018. Draft of the MA was submitted for approval on 16.01.2.018. Eventually, the Pr.CIT-1, Pune approved the Miscellaneous Application on 25.01.2018. Accordingly, this Miscellaneous Application is filed on 30.01.2018. 4. Further, on the issue of delay of 30 days, ld. DR for the Revenue submitted that actually there is no delay when the period of limitation is counted from the date of service of order of the Tribunal in the office of the Pr. CIT-1, Pune on 22.09.2017. In this regard, ld. DR filed copy of the order of the Tribunal of Chandigarh Bench in the case of Jagmohan Gurbakshish Singh vs. DCIT vide MA no.42/Chd/2018 (arising out of ITA No.101/Chd/2017) dated 27.04.2018 for the assessment year 2013-14. Bringing our attention to para 5 of the said order of Chandigarh Bench of the Tribunal in the MA proceedings, ld. DR for the Revenue submitted that counting of days of limitation should commence from the "date of dispatch or receipt" of the copy of the order by the Pr. CIT and not the "date of passing of the order". The ld. DR further submitted that there is no delay in this case and, therefore, requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, ld. Counsel submitted that principle of illiteral interpretation held valid in this case in the light of postamended provisions of section 254(2) of the Act. Thus, the decisions of Mumbai Bench and Pune Bench of the Tribunal have taken identical "principle of illiteral interpretation" of the said provisions of section 254(2) of the Act. 8. From the above judicial precedents, it is evident that the decision of Chandigarh Bench of the Tribunal is in favour of the literal interpretation of the provisions of section 254(2) of the Act. The decisions of Pune Bench and Mumbai Bench of the Tribunal are in favour of illiteral interpretation of the provisions of section 254(2) of the Act. 9. We proceed to extract the relevant part from both the divergent views with regard to literal interpretation of the provisions of section 254(2) of the Act or otherwise in the above cited judicial precedents. A. Chandigarh Bench - Jagmohan Gurbakshish Singh (supra) : "5. We have considered the rival submissions. The assessee has moved an application for recalling of the order pleading that a mistake apparent on the record has occurred in the impugned order. The mistake can be due to wrong apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed provision of section 254(2) of the Act. B. Gujarat High Court - Peterplast Synthetics (P.) Ltd. (supra) : "Held, that the Tribunal passed the order which was sought to be rectified on February 20, 2007, and it had been admittedly received by the assessee on November 19, 2008. The assessee preferred the application of May 9, 2012. The application was not barred by limitation." The same in the case here and the judgement relates the pre amended provisions of section 254(2) of the Act. C. Pune Bench - Shri Kasturilal Sardarilal Luthra (supra) : "4. ......... . ......... We find that the facts in the said case are distinguishable. In the said case the order of Tribunal was passed MA No. 38/PUN/2017, A.Y. 2003-04 before amendment of section 254(2) by the Finance Act 2016. The Tribunal rejected application of the assessee u/s. 254(2) by applying amended provisions. The Hon'ble High Court allowing the petition of assessee held that the new law of limitation providing a shorter period cannot be applied retrospectively. It is not the case of assessee that the Tribunal order sought to be rectified is passed prior to amendment. Thus, the case law on which the ld. Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of receipt" of order of the Tribunal. This is the case where the Tribunal passed the order on 28.02.2007 and the same was received by the assessee on 19.11.2008. The assessee preferred a Miscellaneous Application and filed the same on 09.05.2012. The Hon'ble High Court held that the Miscellaneous Application is not barred by limitation considering the actual date of receipt of order of the Tribunal. The present MA suffers from limitation issue. Further, it is decided issue that the Tribunal cannot go into the merits of the delay. Thus, the preliminary issue stands dismissed. On Merits 11. Further, on the merits of the mistake, ld. DR for the Revenue brought our attention to the contents of para 9 of the order of the Tribunal and submitted that the issue of invoking of provisions of section 194H/40(a)(ia) of the Act was not adjudicated by the Tribunal. In this regard, ld. DR submitted that this is the case where a sum of Rs. 60 lakhs was paid by the assessee to M/s. Global Properties towards nomination fees for release of rights without making TDS. 12. It is the case of the assessee that the said payment being compensation in nature and does not need affecting of the TDS. The sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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