2018 (1) TMI 800

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....laneous Application seeking recall of the ex-parte order u/s 254(2) restoring the appeal for disposal on merits. 2. We noticed that the Miscellaneous Application is not maintainable as it is filed on 09-12-2017, whereas the impugned order was passed on 31-05-2017. As per the provisions of Section 254(2) of the Income Tax Act, 1961 [Act], the time limit prescribed for filing a Miscellaneous Application, with a view to rectify any mistake apparent from record, is 'within six months from the end of the month in the order was passed'. Assessee states in the present Miscellaneous Application itself that the order of the Hon'ble Tribunal was received by assessee on 24-06-2017 and the petition is within the time limit prescribed u/s. 254(2)....

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....cation within the period of limitation i.e., "six months from the end of the month in which the order was passed". In the instant case, the order was passed / pronounced on 21.06.2016 and from the end of the month, the period of six months expires on 31.12.2016. Assessee filed the present Miscellaneous Application (MA) on 20.01.2017 on the ground that the order was served upon the assessee on 05.07.2016; Reckoning the time limit from the end of the month of July, the MA filed by the assessee is within the period of limitation. The case of the assessee is that the procedures as well as the period of limitation set out in the Act are mainly intended to subserve the interest of the parties and in tax matters it cannot be considered as lis betw....

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....speaks of the time taken for obtaining the copy of the decree or order while computing the period of limitation. In para 21 of the judgment, the Hon'ble Madras High Court observed as under:- "21. Even taking for granted that the judgments of the Apex Court are applicable to the case on hand and that the period of limitation of four years for filing an application for recalling an order filed u/s 254(2) of the IT Act, 1961, has to be computed from the date of service of the order, averments made in the said petition, filed in the year 2015, are bereft of details, as to when the order was served in the address, where the office of the appellant is situated. Order of the Tribunal in ITA No.638/Mad/2011, has been passed on 18th July, 2....

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....er. In sub-clause (b) thereof, the expression used is "after the expiry of six months from the end of the month in which such order of revision is passed". However, in sub-clause (c) thereof, the expression used is "the period of six months shall be counted from the end of the month in which the action is initiated". Thus, the Legislature was conscious of the difference between the 'date of receipt of the order' and 'date of passing the order'. In section 254(2) of the Act, the Legislature referred to order "passed" and therefore, the assessee should not be given benefit of the period of limitation reckoned from the 'date of receipt of the order'. He, thus, strongly submitted that the MA filed by the assessee is beyond the period of limitat....