TMI Blog2019 (12) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... It was accordingly decided to hear Misc. Application ex-parte qua the assessee based on material available on record. 3. At the outset, it is noted that the application filed by the assessee U/s 254(2) of the Act is delayed filed by 546 days. The order was passed by the Coordinate Bench on 02.06.2017 and the Misc. petition U/s 254(2) of the Act has been filed by the assessee only on 01.07.2019. In his misc. petition, the assessee has taken the ground that he was never served any notice for hearing of the application by the Tribunal and first time he came to know through Income Tax Office, Kishangarh that his appeal order has been decided ex-parte. 4. From the records, it is noted that the notice for hearing was sent by the Registry on 21.04.2017 fixing the date of hearing on 02.06.2017 at the address given by the assessee in Form 36 which is C/o Shri D.K. Mathur, Station Road Makrana, Distt. Nagaur. Further the order passed by the Coordinate Bench dated 02.06.2017 was sent through registered AD at the same address on 04.07.2017. There is nothing on record to suggest that the said order was received back unserved, therefore, it cannot be accepted that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated 27.12.2017 as has in para 3 as under:- 3. We have considered the rival submissions as well as relevant material on record. We note that the present miscellaneous petition was filed by the Revenue for recalling of the order dated 18.12.2015 and therefore, as per un-amended provisions of Section 254(2) of the Act, the limitation period provided for rectification of the mistake was 4 years from the date of order. However, the provisions of Section 254(2) has been amended by the Finance Act, 2016 w.e.f. 01.06.2016 providing the limitation period for rectification of mistake as 6 months from the end of the month in which the order is passed. For ready reference, we quote section 254(2) as under:- (2) The Appellate Tribunal may, at any time within 72[six months from the end of the month in which the order was passed], with a view to rectifying any mistake apparent from the record73, amend any order 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Tribunal. Thus, by Virtue the amendment in the provisions of Section 254(2) of the Act w.e.f. 01.06.2016 the time period within which the mistake apparent from record can be rectified has been reduced from 4 years 6 months. There is no quarrel on the point that this amendment in Section 254(2) cannot be given effect retrospectively so as to take way of right of the parties to file the application of rectification. The Hon ble M.P. High Court in case of District Central Cooperative Bank Ltd. Vs. Union of India(supra) has observed in paras 9 and 10 as under:- 09- The amendment has been made effective virtually in case of assessee with retrospective effect though the amendment does not show that it is applicable with respective effect, however, the existing right has been extinguished with retrospective effect in case of the assessee. 10- In the considered opinion of this Court, the legislature should have granted some time to the assessees who could have filed an appeal within a period of fours and the some has not been done till the amendment came into force extinguishing the right to file an appeal. Therefore, the Hon ble High Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.] 6. The time period within which the mistake apparent from record can be rectified has been reduced from 4 years to 6 months by the amendment vide Finance Act, 2016 w.e.f. 01.06.2016. Thus after the substitution of this provision w.e.f. 01.06.2016, the limitation period for rectification of mistake apparent from record is provided only for 6 months 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 04.01.2016 and after the amendment in section 254(4) w.e.f. 01.06.2016, these miscellaneous petition was required to be filed before 31.07.2016. 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 Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition filed by the assessee is beyond the period of 6 months from 04.01.2016 and therefore the same is barred by limitation. In the absence of any provision to condone 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 Corpn. Ltd. v. ITAT [2013] 359 ITR 371/[2014] 42 taxmann.com 25, 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 Act is only to rectify an error apparent from the record. It does not empower the Tribunal to recall its earlier order dated December 6, 2007, for which the miscellaneous application was filed on August 6, 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 under section 254(2) of the Act only the order can be rectified but cannot be recalled. We find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these circumstances, the application would be an application for rectification of the order dated December 6, 2007, and would stand governed by section 254(2) of the Act. 17. In the facts of the present case there can be no denial that the order dated December 6, 2007, suffers from an error apparent from the record. The error is in having ignored the mandate of rule 24 of the Tribunal Rules which required the Tribunal to dispose of the matter on the merits after hearing the respondents. In these circumstances, an application for rectification would be 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 it was filed beyond a period of four years from the order sought to be rectified. 18. Before concluding, we would like to make it clear that an order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven hereinabove, we find the Tribunal was correct in dismissing the miscellaneous application by its order dated April 10, 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. 8. In view of the facts and circumstances of the case as well as the decision of the Hon'ble Bombay High Court in the case of Bharat Petroleum Corpn. Ltd. (supra), 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. Accordingly the same is dismissed being barred by limitation. Accordingly, in view of the above facts and circumstances as discussed in foregoing paras as well as the decision of the Bangalore Benches of the Tribunal (supra) the miscellaneous petition filed by the Revenue on 22.05.2017 is beyond the period of limitation expired on 30.11.2016 and according the same is not maintainable. Accordingly, in view of the facts and circumstances of the case when the miscellaneous application is barred by limitation and following the earlier order of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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