Case Law Details

Case Name : DCIT Vs Hita Land Private Limited (ITAT Mumbai)
Appeal Number : ITA No. 8247/Mum/2011
Date of Judgement/Order : 25/04/2017
Related Assessment Year : 2009- 10
Courts : All ITAT (4213) ITAT Mumbai (1410)

The Tribunal has been given power to admit an appeal after the expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period as per Section 253(5). However, this Tribunal is not enshrined with such powers in respect of a miscellaneous petition filed u/s 254(2) of the Income Tax Act. If we are not given that power, then it is not expected from us to exercise such power which is not provided in the Act.

1. The captioned miscellaneous applications filed by Revenue for Assessment Year [AY] 2009-10 u/s 254(2) of the Income Tax Act, 1961 in respect of separate assessee seeks rectification of mistake apparent from record in common Tribunal Order dated 22/03/2013. Since these applications arise out of common order, we proceed to dispose- off the same together by way of this common order for the sake of convenience and brevity.

2. The Revenue has contended that the Tribunal allowed the ground numbers 1 & 2 of assessee’s appeal for AY 2007-08, 2008-09 & 2009-10 presuming that the assessment orders in all the years were passed u/s 143(3) read with section 153C. However, the assessment order for 2009-10 was passed u/s 143(3) and not under Section 143(3) read with section 153C and therefore, a mistake apparent from record has crept into the order and the matter for 2009-10 requires fresh adjudication which has led to filing of these rectification petitions u/s 254(2).

3. At the outset, the Ld. Counsel for Assessee [AR], while drawing our attention to the statutory provisions as contained in Section 254(2) vis-à-vis date of rectification application filed by the Revenue, raised a preliminary legal objection that these applications, being time barring, could not be entertained particularly when the power of con donation was not provided under the statute. Reliance has been placed on the judgment of Bharat Petroleum Corporation Ltd. Vs ACIT [158 TTJ (Mumbai) 165 order dated 10/04/2013]. The revenue has contended that the application has been filed within a period of four years from the date of the order and hence, the applications were within time as per the earlier provisions.

4. We have heard the rival contentions and perused relevant material on record. Since, preliminary legal objections questions the very admissibility of these rectification applications, we take up the same first. For record, we note that the date of order passed by the Tribunal is 22/03/2013 and the revenue has filed these applications on 28/02/2017 which are clearly beyond a period of six months as provided in Section 254(2). At this juncture, it would be prudent to reproduce the relevant provisions as contained in Section 254(2) of the Income Tax Act, 1961:-

Orders of Appellate Tribunal.
254. (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
(1A) [***]
(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 the Assessing Officer:

It is to be noted that the earlier period of ‘four years’ has been substituted with ‘six months’ by the Finance Act, 2016 with effect from 01/06/2016. However, we find that no distinction has been made in this section between orders passed before 01/06/2016 and orders passed after 01/06/2016. Moreover, the Tribunal order was dated 22/03/2013 and therefore, the Revenue had ample time to go through the same and pin point the mistakes in the order but it has failed to do so. Therefore, we find no force in these miscellaneous petitions primarily because of the reason that the Statute does not authorize us to entertain any petition which has been filed u/s 254(2) at any time beyond a period of six months from the date of the order. The Tribunal has been given power to admit an appeal after the expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period as per Section 253(5). However, this Tribunal is not enshrined with such powers in respect of a miscellaneous petition filed u/s 254(2) of the Income Tax Act. If we are not given that power, then it is not expected from us to exercise such power which is not provided in the Act. The Tribunal, being creation of law, is bound by the statutory provisions and our jurisdiction is simply to interpret and follow the Statute. There is no scope for us to import any word into the Statute which is not there. Such importation would be nothing but to amend the Statute. We therefore hold that the con donation of delay of these petitions is beyond our jurisdiction, hence rejected. Similar view has been taken by the Mumbai Tribunal in the cited order. Hence, finding the petitions time barring, we dismiss the same.

5. In nutshell, all the miscellaneous applications filed by the Revenue stands dismissed.

Order pronounced in the open court on 25th April, 2017.

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Category : Income Tax (24907)
Type : Judiciary (9823)
Tags : ITAT Judgments (4392) section 254 (16)

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