TaxTMI 
TaxTMI 
TaxTMI 
2017 (4) TMI 1309
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....secution and that non-appearance of the assessee or its representative was not intentional, but was due to communication gap between the assessee and its representative, the appeal may be recalled for hearing on merits. 03. When the case was called up for hearing on 21.04.2017, even though the notice of hearing is served by RPAD, none appeared from the assessee's side. 04. The learned DR has vehemently opposed to the miscellaneous application and submitted that the miscellaneous application is not maintainable as this is 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 mon....
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....98, shall be accompanied by a fee of fifty rupees.] 06. The time period within which the mistake apparent from record can be rectified has been reduced from 4 years to 6 months by the amendment vide Finance Act, 2016 w.e.f. 01.06.2016. Thus after the substitution of this provision w.e.f. 01.06.2016, the limitation period for rectification of mistake apparent from record is provided only for 6 months from the end of the month in which the order was passed. In the case in hand, the impugned order was passed by the Tribunal on 04.01.2016 and after the amendment in section 254(4) w.e.f. 01.06.2016, these miscellaneous petition was required to be filed before 31.07.2016. Prior to the amendment, the limitation was provided as 4 years for rectifi....
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.... 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. 07. 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 ....
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....pparent from the record. The consequence of such rectification application being allowed may lead to a fresh hearing in the matter after having recalled the original order. However, the recall, if any, is only as a consequence of rectifying the original 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 ....
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....e Tribunal in recalling its earlier order dated October 27, 2000. Thus, recall of an order is not barred on rectification application being made by one of the parties. In these circumstances, the application would be an application for rectification of the order dated December 6, 2007, and would stand governed by section 254(2) of the Act. 17 In the facts of the present case there can be no denial that the order dated December 6, 2007, suffers from an error apparent from the record. The error is in having ignored the mandate of rule 24 of the Tribunal Rules which required the Tribunal to dispose of the matter on the merits after hearing the respondents. In these circumstances, an application for rectification would he under section 254(2) ....
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....ecision 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, 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 wil l apply as provided in section 254(....