TMI Blog2021 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed by the Co-ordinate Bench decision in ITA No. 349/JP/2013 dated 20/07/2015. 2. During the course of hearing, the ld. AR submitted that the Tribunal has passed the order on 20.07.2015 stating that the notice fixing the hearing has been returned unserved and apparently, the address of the assessee has changed and he has not intimated the new address and the assessee thus was not interested and the appeal of the assessee was dismissed summarily without deciding on merits. It was submitted that assessee s address was changed previously and he has intimated the same to ld CIT(A) as well as in appeal filed before the Tribunal, the new address has been given and therefore, the order so passed by the Tribunal be rectified and recalled to hear the assessee on merits of the case. 3. Per contra, the ld DR submitted that order was passed by the Tribunal on 20/07/2015 and the miscellaneous application has been filed by the assessee on 1.12.2020 which is beyond the limitation period as provided u/s 254(2) of the Act. It was accordingly submitted that the misc. application so filed by the assessee is not maintainable as filed beyond the limitation period and it is consistent position ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial on record we note that the certified copy of the impugned order was issued and send to the assessee on 21.04.2017. We further note that the assessee provided address for communication in the form No. 36 as the address of the counsel who was authorized and representing the assessee in the appeal. The assessee now come up with the plea that the assessee has taken the certified copy only on 08.09.2017 which is only another copy of the impugned order provided to the assessee on his request. However, once the order was duly send to the assessee at the given address then, this plea of the assessee cannot be accepted. Undisputedly the present miscellaneous application has been filed by the assessee beyond the period of 6 months from the end of the month in which the impugned order was passed. Thus, in the absence of any provision u/s 254(2) or any other provisions of the Income Tax Act to condone the delay in filing the miscellaneous application we do not find any substance in the plea of the assessee to condone the dely. The Coordinate Bench of this Tribunal has considered an identical issue of maintainability of the miscellaneous application filed beyond the period of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in that order: Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty-five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: 80 [Provided also that if such appeal is not so disposed of within the period allowed under the first proviso or the period or periods extended or allowed under the second proviso, which shall not, in any case, exceed three hundred and sixty-five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee.]] (2B) The cost of any appeal to the Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Bangalore Benches of this Tribunal in case of Smt. Padma K. Bhat vs. ACIT 166 ITD 172 had the occasion to consider an identical issue and one of us the Judicial Member is party to the said order and held in paras 5 to 8 as under:- 5. We have considered the above submissions and carefully perused the relevant record. The assessee has filed this miscellaneous petition on 10.03.2017 for recalling of order of the Tribunal dated 04.01.2016. The provision of rectification of mistake apparent from record is provided under section 254(2) as under: 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 46. (1A) 48[***] (2) The Appellate Tribunal may, at any time within four years from the date of the order, 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 liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. However, in the amended provisions of the Act under section 254(2), the limitation for rectification of mistake apparent from the record has been drastically reduced from 4 years to 6 months and in case of a delay in applying for rectification of mistake apparent from record, the party who is aggrieved by the order of this Tribunal suffering from mistake will be subjected to a great hardship and deprivation of valuable right of pursuing the appeal before the Tribunal. But in the absence of any provision giving power or jurisdiction to this Tribunal to condone the delay in filing the petition for rectification of the mistake apparent from the record, the Tribunal has no option but to proceed strictly as per the provisions as provided in the statute. 7. We have no doubt in our mind that there is an apparent mistake in the order dated 04.01.2016 as the Tribunal has not decided the appeals of the assessee on merit but dismissed the same in limine for want of prosecution. However, the question of rectification of mistake cannot be entertained until and unless the Miscellaneous Petition filed by the assessee is found to be maintainable. The miscellaneous petition filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck exchange filed a rectification application under section 254(2) of the Act before the Tribunal. The Tribunal by its order dated September 5, 2001, allowed the application and held that there was a mistake apparent on the record which required rectification. Accordingly, the Tribunal recalled its order dated October 27, 2000, for the purpose of entertaining the appeal afresh. The Revenue filed a writ petition in the Gujarat High Court challenging the order dated September 5, 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 the binding decisions of the jurisdictional High Court. This mistake was corrected by the Tribunal under section 254(2) of the Act. The Supreme Court held that the rectification of an order stands on the fundamental principle that justice is above all and upheld the exercise of power under section 254(2) of the Act by the Tribunal in recalling its earlier order dated October 27, 2000. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein before, even if void was required to be set aside. A consent decree as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in the Limitation Act, 1963, would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all. Therefore, in this case also 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 December 6, 2006, is a void order. 19 We shall now answer the questions arising in this case as raised by us in paragraph 4 above as under : Question (a) : No. The Tribunal has no power in terms of rule 24 of the Tribunal Rules to dismiss an appeal before it for non-prosecution. Question (b) : 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. Question (c) : Does not arise in view of our response to query (b) above. 20. In view of the reasons given hereinabove, we find the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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