TaxTMI 
TaxTMI 
2013 (5) TMI 218
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....ted that as held by the Hon'ble High Court, the provisions of section 254(2) does not apply to the proceedings for recalling of the order whereby the appeal of the assessee was dismissed for non prosecution. He has further contended that the Tribunal has the inherent jurisdiction to set aside the order, which has been passed by committing an error itself and which has cause prejudice to a party in the case. He has thus contended that the limitation provided under section 254(2) does not apply for rectification of wrong committed by the Tribunal itself. 2.2 The Sr ld counsel has then referred and relied upon the decision of the Hon'ble Kerala High Court in the case of Commissioner of Income-tax v. Income-tax Appellate Tribunal & another reported in 120 ITR 231 and submitted that power to setting aside the exparte order is extended u/s 254(1) of the Act and not u/s 254(2). Therefore, the limitation provided u/s 254(2) does not apply in the proceedings for setting aside/recalling of the exparte order. 2.3 The ld Sr counsel then referred and relied upon the decision of the Hon'ble jurisdictional High Court in the case of Khushalchand B. Daga v. Surendran (T.K.), 4th ITO reported in 8....
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....parte and dispose off on merits. Thus, apart from passing such order as it think fit, the Tribunal may dispose of the appeal exparte on merits. For ready reference, we quote Rules 24 of the Income Tax Appellate Tribunal Rules as under: "24. Where, on the day fixed for hearing or on any other date to which the hearing may be adjourned, the appellant does not appear in person or through an authorized representative when the appeal is called on for hearing, the Tribunal may dispose of the appeal on merits after hearing the respondent; Provided: that where an appeal has been disposed of as provided above and the appellant appears afterwards and satisfies the Tribunal that there was sufficient case for his non appearance, when the appeal was called on for hearing the Tribunal shall make an order setting aside the exparte order and restoring the appeal." 3.2 It is trait law that the Rules do not expend or circumscribe the jurisdiction of the Tribunal conferred by the statute. The rule contains only procedural aspect of the proceedings before the Tribunal. It is settled legal proposition that the terms as it think fit, used in sec. 254(1) is wide enough and includes dismissal of appeal....
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....m by taxi to appear before the Hon'ble Tribunal on the date fixed but unfortunately the deponent could reach the Hon'ble Tribunal at around 10.50 am only due to heavy traffic jam on that and when enquired about the expected time for hearing of aforesaid appeal, the deponent was informed by the Bench Clerk that Honb'ble Bench had called out the mater and as nobody from BPCL was present in the court room when the matter was called, it had dismissed the appeal for want of prosecution." 4.2 It is clear from the averments of the affidavits that the representative of the assessee did not appear before the Tribunal on 4.12.2007 when the appeal of the assessee was called for hearing and consequently dismissed for non prosecution. This fact of non appearance and the subsequent order was known to the assessee on that day i.e 4.12.2007; though the order was signed on a subsequent date i.e. on 6th Dec 2007. It is manifest from the record as well as the averments made in the affidavit that the assessee is responsible for the impugned order passed by the Tribunal and therefore, this case does not fall under the category of wrong committed by the Tribunal itself. 5 In the case of Commissioner o....
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....the assessee. 6 In the case of Khushalchand B. Daga v. Surendran (T.K.) (supra), the grievance of the assessee before the Hon'ble High Court was against the order passed on 24.10.1961 by the Tribunal whereby the appeal of the assessee was dismissed for default and subsequently, the assessee filed a Miscellaneous Application after the expiry of four years from the date f the order which was dismissed by the Tribunal as barred by limitation. 6.1 The assessee contended before the Hon'ble High Court that the order of the Tribunal whereby the appeal of the assessee was dismissed for default was not served upon him and he came to know of the said order for the first time on 4.1.1968. The Hon'ble High Court proceeded with the matter in the light of the fact that the un-amended provisions of Rule 24 of the Income Tax Appellate Tribunal Rules had been struck down being repugnant to section 33(4) of the I T Act 1922 because there was no provision in the said Rule for setting aside the exparte order whereby the appeal of the assessee was dismissed for non prosecution. The Hon'ble High Court has observed as under: "In the present case, in view of the aforesaid decision of the Supreme Court ....
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....of Rule 24; rather, the assessee itself has filed the present application under Rule 24 of the Income Tax Appellate Tribunal Rules 1963. Therefore, the above said decision of the Hon'ble High Court is not applicable on the facts of the present case. 7 As regards the decision of the Nagpur Special Bench of this Tribunal in the case of Bhilai Engg Corpn Ld (supra), the said decision has been overruled/reversed by the larger Bench (5 members) of this Tribunal in the case of Arvindbhai H. Shah Vs Assistant Commissioner of Income Tax reported in 91 ITD 101 wherein the larger Bench of this Tribunal has held in paras 24 to 26 as under: "24. In the case of Smt Tarulata Shyam and Ors. (supra), s. 2(6A)(e) of the Indian IT Act, 1922, came for consideration which created a fiction for its applicability if at the time of payment of advance or loan to a shareholder of a company, in which public are not substantially interested and tax is attracted on the loan or advance to the extent to which the company possesses the accumulated profits, the moment the loan or advance is received. The loan in this case was repaid before the end of the year and a contention was raised that the fiction created....
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....ndefinite period on future unforeseen events. Proceedings which had attained finality under existing law due to bar of limitation cannot be held to be open for revival unless the amendment provision is clearly given retrospective operation so as to allow upsetting of proceedings which had already concluded and attained finality, In these circumstances, when a period of limitation of four years is provided under s. 254(2) for rectifying an order, no rectification can be made after that period on the principle of equity and justice or on the basis of theory that justice should be done, even if heaven falls, as in our opinion, even period of limitation is part of the jurisprudence and cannot be brushed aside or ignored to grant relief on the prayer of the assessee or Revenue after the expiry of said period of four years. Similarly, in the case of S.P. Gupta (supra), the Supreme Court held that obvious omission can be made up by suitable interpretation but the Court cannot supply supposed deficiencies as in that case instead of declaring the law, it would be making law. 26. In view of the above discussion we, therefore, hold that time-limit of four years to make rectification applies ....