TaxTMI 
TaxTMI 
2017 (7) TMI 434
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....ns to seek information such as date of hearing etc., and since the assessee did not receive notice of hearing of the appeal on 07.04.2016, therefore, the assessee could not communicate the date to the representative to appear before this Tribunal. The learned AR has thus pleaded that the reasons for not appearing are beyond the control of the assessee and therefore the impugned order may be recalled for giving an opportunity of hearing and deciding the appeals on merits. 3. On the other hand, the learned DR has vehemently opposed to the miscellaneous application and submitted that the miscellaneous applications are not maintainable as these are barred by limitations as per section 254(2) of the Act. The learned DR has further contended that after the amendment of section 254(2), the mistake in the order of the Tribunal can be rectified within the period of 6 months and since the assessee has filed these miscellaneous applications after the expiry of 6 months of limitation period, therefore the miscellaneous applications are not maintainable and liable to be dismissed in limine. 4. We have considered the rival submissions and carefully perused the relevant record. The assessee....
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....vided as 3 years onwards from the date of cause of action arised 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 Income Tax Act itself, therefore the provisions of Limitation Act are not applicable so far as the limitation provided in the Income Tax Act. This principle is well settled that when there is a provision in special statute, then the general statute is not applicable to the extent of the provision provided in the special statute. We find that prior to the amendment the limitation for rectification of mistake was 4 years as provided under section 254(2) and therefore there was no question of providing any provision or power to the Income Tax Appellate Tribunal to condone the delay after the expiry of such 4 years of 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....
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....l 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 res integra. The issue stands covered by the decision of the apex court in Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC) which held that though the Tribunal has no power to review its own order, yet it has jurisdiction to rectify any mistake apparent on the face of the record and as a consequence, therefore, the Tribunal can even recall its order. In the above case, before the apex court on October 27, 2000, the Tribunal dismissed the appeal of stock exchange holding that it was not entitled to exemption under section 11 read with section 12 of the Act. On November 13, 2000, the stock 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, fo....
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....orted in [2004] 2 SCC 377 h 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.. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.' This must be equally true even where the 'brand of invalidity' is plainly visible : for there also the order can effectively be resisted in law only by obtaining a decision of the court." Further, the Supreme Court in Sneh Gupta v. Devi Sarup [200916 SCC 194 has observed: "We are concerned herein with the question of limitation. The compromise decree, as indicated 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, wo....