2018 (4) TMI 1557

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....stry has put a note that the applications are time barred by five days. However, Ld. Counsel for the assessee has submitted that in view of the settled legal position of law, the applications cannot be treated as time bar red. He in this respect has invited our attention to the relevant provisions of sect ion 254(2) of the Income-tax Act , 1961 ( in short 'the Act '), which read as under :- "254. ...... (2) The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed] , with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or th....

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.... period as prescribed before amendment ) from the date of actual receipt of the judgment and order and, therefore, the same was within the period of limitation as per sect ion 254(2) of the I. Tax Act . The Ld. Counsel has further relied upon the decision of the Hon'ble Gujarat High Court in the case of 'Liladhar T Khushlani Vs. Commissioner of Customs' in Tax Appeal No. 915 of 2016 vide order dated 25.01.2017 wherein the Hon'ble High Court while interpreting the identical provisions to the Central Excise Act 1944 has held that the period of limitation to file the rectification application shall commence from the date of dispatch of the order and not f rom the date of actual passing of the order. The Ld. Counsel has, therefore, subm....

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....T Khushlani Vs. Commissioner of Customs' (supra), holding that the relevant date has to be taken as the date of dispatch / receipt of the copy of the order and not the date of passing of the order . Since as on both the dates i.e. date of dispatch as well as dated of receipt , the application of the assessee would be deemed to be filed within the l imitation period, hence, we leave the quest ion of law open as to whether the date of dispatch of order or the date of receipt of copy of the order by the concerned par ty is to be taken as date of commencement of limitation period. 6. So far as the arguments of the Ld. DR that the date of communication is to be taken either as 'communication or knowledge, actual or constructive' of the order ....

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.... assessee has submit ted that the issue involved in the appeals relate to deduction claimed u/s 80IC of the Act to the extent of 100% on account of substantial expansion carried out by the assessee. That the said decision is now covered by the subsequent decision of Hon'ble Jurisdictional High Court of Himachal Pradesh in M/s Stove kraft India Vs. CIT in ITA No. 20/2015 dated 28.11.2017, wherein, the decision of the Tribunal in the case of Hycron (supra) has been set aside. The Ld. DR is fair enough to concede this factual matrix. It is settled law that in the case of law declared / any interpretation made by the higher court , it is to be taken as such interpretation was the right interpretation of those provisions as on the date of th....