TaxTMI 
TaxTMI 
2019 (12) TMI 75
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....same and decided the appeal of the assessee on merits. The ld. A/R has further contended that since the assessee was not aware of the date of hearing as well as the order passed by the Tribunal, therefore, the present Miscellaneous application could not be filed within the period as prescribed under section 254(2) of the IT Act. In support of his contention he has relied upon the decision of this Tribunal dated 20th March, 2019 in case of Shri Narendra Kumar Chaturvedi vs. ITO in M.A. No. 97/JP/2018. Thus the ld. A/R has pleaded that the impugned order dated 27.10.2017 be recalled for deciding the appeal of the assessee on merit. 3. On the other hand, the ld. D/R has submitted that the appeal of the assessee was pending since the year 2012 and that too is time barred by 501 days. The appeal was earlier also dismissed vide order dated 15.06.2015 for non prosecution and the said order was recalled by the Tribunal vide order dated 23rd March, 2016 on the M.A. No. 16/JP/2016 filed by the assessee. The ld. D/R has further pointed out that the assessee did not appear either before the AO or before the ld. CIT (A), therefore, the assessment order was passed ex parte under section 144 a....
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....osecution of the appeal. Further, there is nothing on record that the impugned order of the Tribunal sent by the Registry was not received by the assessee. We have verified the record and found that the order of the Tribunal dated 27th October, 2017 was duly sent through Registered A/D and in the absence of any record to show that the said order was received back unserved, it cannot be accepted that the assessee has not received the order of the Tribunal. Therefore, the decision relied upon by the assessee in the case of Shri Narendra Kumar Chaturvedi vs. ITO (supra) will not help the case of the assessee. It is pertinent to note that in the said decision on verification of the record of the Registry, it was found that the order sent by the Registry to the assessee was received back unserved and subsequently the said order was sent to the assessee through the ITO and, therefore, when the assessee received the order through ITO, the limitation was considered to be reckoned from the date when the order was received by the assessee. In the case in hand, there is nothing to show that the assessee did not receive the order sent by the Registry well in time. Since the provisions of secti....
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.... the present miscellaneous petition was filed by the Revenue for recalling of the order dated 18.12.2015 and therefore, as per un-amended provisions of Section 254(2) of the Act, the limitation period provided for rectification of the mistake was 4 years from the date of order. However, the provisions of Section 254(2) has been amended by the Finance Act, 2016 w.e.f. 01.06.2016 providing the limitation period for rectification of mistake as 6 months from the end of the month in which the order is passed. For ready reference, we quote section 254(2) as under:- "(2) The Appellate Tribunal may, at any time within ^72[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^73, amend any order passed by it under sub-section (1), and ^73shall make such amendment^73 if the mistake is brought to its notice by the assessee or the ^74[Assessing] Officer : Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the as....
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....rd can be rectified has been reduced from 4 years 6 months. There is no quarrel on the point that this amendment in Section 254(2) cannot be given effect retrospectively so as to take way of right of the parties to file the application of rectification. The Hon'ble M.P. High Court in case of District Central Cooperative Bank Ltd. Vs. Union of India(supra) has observed in paras 9 and 10 as under:- " 09- The amendment has been made effective virtually in case of assessee with retrospective effect though the amendment does not show that it is applicable with respective effect, however, the existing right has been extinguished with retrospective effect in case of the assessee. 10- In the considered opinion of this Court, the legislature should have granted some time to the assessees who could have filed an appeal within a period of fours and the some has not been done till the amendment came into force extinguishing the right to file an appeal." Therefore, the Hon'ble High Court has observed that the amendment in the said provisions is not applicable with retrospective effect otherwise it would extinguish the right of the applicant with retrospective effect. ....
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.... assessee a reasonable opportunity of being heard: [Provided further that any application filed by the assessee in this subsection on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]" 6. 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 rectification of mistake apparent from record and therefore there was no provision in the Income-tax Act for condonation of any delay of any petition for rectification of mistake filed after the said period of 4 years. Even otherwise, the limitation of 4 years was more t....
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.... the delay under the Income-tax Act, it may be a case of omission in the provision of Act which cannot be supplied by us when there is no ambiguity in the provisions of section 254(2) of the Act. The Hon'ble Bombay High Court in the case of Bharat Petroleum Corpn. Ltd. v. ITAT [2013] 359 ITR 371/[2014] 42 taxmann.com 25, while dealing with an identical issue has held in paras 16 to 18 as under: "16. It was next contended on behalf of the petitioner that the power of the Tribunal under section 254(2) of the Act is only to rectify an error apparent from the record. It does not empower the Tribunal to recall its earlier order dated December 6, 2007, for which the miscellaneous application was filed on August 6, 2012. It was submitted on behalf of the petitioner that the application under section 254(1) of the Act would be the only provision under which an application could be made for recall of an order, as under section 254(2) of the Act only the order can be rectified but cannot be recalled. We find that there is an error apparent on record and the miscellaneous application is to correct the error apparent from the record. The consequence of such rectification applicati....
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....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 be under section 254(2) of the Act. The recall of an order would well be a consequence of rectifying an order under section 254(2) of the Act. In these circumstances, we find no reason to interfere with the order of the Tribunal holding that the miscellaneous application filed by the appellant is barred by limitation under section 254(2) of the Act as it was filed beyond a period of four years from the order sought to be rectified. 18. Before concluding, we would like to make it clear that an order passed in breach of rule 24 of the Tribunal Rules, is an irregular order and not a void order. However, even if it is assumed that the order in breach of rule 24 of the ....