TaxTMI 
TaxTMI 
2015 (2) TMI 864
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....red by limitation as provided under section 254(2) of the Income-tax Act. 4. The facts leading to the present special civil application, which are relevant/necessary for determination, in a nut-shell are as under ; 5. Being aggrieved and dissatisfied with the order passed by the Commissioner of Income-tax (Appeals) for the assessment year 1996-97, the petitioner-assessee preferred an appeal before the Income-tax Appellate Tribunal and, vide the impugned judgment and order dated February 20, 2007, the Income-tax Appellate Tribunal dismissed the appeal, being I. T. A No. 2116/Ahd/2003. The said order of the Income-tax Appellate Tribunal was received by the petitioner-assessee on November 19, 2008. After receiving the order, the petitioner-assessee preferred a miscellaneous application/rectification application against the judgment and order dated February 20, 2007, before the Income-tax Appellate Tribunal on May 9, 2012, i.e., after a period of three years, six months and twenty days from the date of receipt of the judgment and order passed by the Income-tax Appellate Tribunal dated February 20, 2007, in I. T. A No. 2116/Ahd/2003. The said rectification application/miscellaneous ap....
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....bsp; (iii) Sree Ayyanar Spinning and Weaving Mills Ltd. v. CIT reported in [2008] 301 ITR 434 (SC); (iv) the unreported decision of this court in the case of Vadilal Industries Ltd v. Union of India rendered in Special Civil Application No. 19950 of 2005 6.2. Shri Manish Shah, learned advocate appearing on behalf of the petitioner-assessee, relying upon the decision of this court in the case of Vadilal Industries Ltd v. Union of India rendered in Special Civil Application No. 19950 of 2005 has submitted that with respect to the analogous provisions in the Central Excise Act, it is held by the Division Bench of this court that the starting point of limitation to prefer the rectification application would be from the date of receipt of the order, which is sought to be reviewed/rectified and not from the actual date of the order. Making the above submissions, it is requested to allow the present special civil application and quash and set aside the impugned order passed by the Income- tax Appellate Tribunal and direct the ....
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.... of the Income-tax Act is in two parts. Under the first part, the Appellate Tribunal may, at any time, within four years from the date of the order, rectify any mistake apparent from the record and amend any order passed by it under sub-section (1). Under the second part of section 254(2), the reference is to the amendment of the order passed by the Tribunal under sub-section (1) when the mistake is brought to its notice by the assessee or the Assessing Officer. It is observed that, therefore, in short, the first part of section 254(2) refers to the suo motu exercise of the power of rectification by the Tribunal whereas the second part refers to rectification and amendment on an application being made by the Assessing Officer or the assessee pointing out the mistake apparent from the record. In the present case, it is the assessee, who submitted the application before the Tribunal and, therefore, the application for rectification was required to be made within a period of four years. In the present case, the Tribunal passed the judgment and order on February 20, 2007, which is sought to be rectified, which has been admittedly received by the assessee on November 19, 2008. The petit....
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....if a year has passed after it the right of the assessee to go in revision would be barred. Now, that seems to us to be an entirely untenable contention. If the Legislature gave the right of revision to the assessee under section 33A it was an effective right and if the Legislature provided a period of limitation that period must equally be an effective period. When we say 'effective' what we mean is that the whole period must be permitted to the person affected by the order within which he can prefer the application for revision. The assessee should know that he has a year's time within which to make up his mind whether he should apply for revision or not. If Mr. Joshi's contention were to be accepted, we would be driven to this extra ordinary conclusion that the period of limitation provided by the Legislature could be cut down by the action of the Appellate Assistant Commissioner. The Appellate Assistant Commissioner could at his sweet will determine what the period of limitation was. He need not promulgate the order for a month, two months, or six months, and the period of limitation would depend upon when he chose to inti mate to the party affected the nature of....
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....his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words 'the date of the award' occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector ; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words 'from the date of the Collector's award' was held to be unreasonable. The court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated ....
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....sp; 14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or know ledge, actual or constructive, of the order sought to be reviewed." 10.2. Identical question came to be considered by the Division Bench of this court in the case of Vadilal Industries Ltd. (supra), however, dealing with the similar analogous provision under the Central Excise Act, i.e., section 35C(2) of the Central Excise Act. In the said decision, the Division Bench of this court has held that the rectification application can be made within a period of six months from the date of receipt of the order, which is sought to be reviewed. While holding so in paragraphs 15 and 16 the Division Bench has observed and held as under : "15. There is another angle from which the matter can be approached. It is only the party to....