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TMI Blog2019 (12) TMI 821X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, 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 assessee has not received the order of the Tribunal. Since the provision of Section 254(2) of the Act has prescribed the limitation for rectification of mistake within a period of 6 (six) months from the end of the month in which the order is passed, therefore, the present Miscellaneous Application filed belatedly with a delay of 546 days is not maintainable. The limitation for rectification of mistake is provided in the IT Act itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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 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 : 5[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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.06.2016. 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 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents. 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 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. U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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