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In the present facts there is nothing on record in the form of the Advocates letter, etc. to indicate that the petitioner acted upon his legal advise and the same was wrong. Therefore, whether the petitioner acted on advise of his Advocate or not is itself a subject matter of debate. Thus taking the application outside the scope of Section 254(2) of the Act.
The existing provisions of Section 254(2) provide for a time-limit of four years from the date of the order of the Appellate Tribunal for rectification of mistakes apparent from the record. In practice this long time-limit has given rise to difficulties arising on account of non-availability of the Members who passed the order due to transfer or retirement or otherwise. Moreover any mistake in the order should not be allowed to remain for such a long period.
ITAT Mumbai held In the case of Shakti Cable Industries vs. ITO that it is clear that the words mistake apparent from record, as appearing in the section 254(2) has a special meaning and definite connotation.
A perusal of this order reveals that the Tribunal has recorded a finding that it is empowered by Section 254 of the Act to stay prosecution. The said finding is the bone of contention between the parties. Pr. Commissioner of Income Tax Vs. Income Tax Appellate Tribunal, Delhi Bench (Punjab & Haryana HIgh Court at Chandigarh),
If the AO had reopened the assessment and made a disallowance and these facts could affect the outcome of the issue, the AO should appear before the FAA to file an explanation about the chronology of events. But, in any manner the subsequent decision taken by the AO cannot be held to be a mistake apparent from the record.
Reliance in this regard can be placed on the decision of Hon’ble Delhi High Court in case of Pepsi Foods Private Limited vs. ACIT [W.P.(C) 1334/2015] pronounced on 19-05-2015 wherein the petitioner has challenged the constitutional validity of Section 254(2A) of the Income Tax Act, 1961 (here-in-after referred to as ‘the Act’).
The assessing officer is a prospector of the revenue and he is no doubt expected to protect the interests of the revenue zealously, but such zeal has to be tempered with the rules of fair play and an anxiety to ensure that a opportunity is not lost to the assessee to make alternative arrangements for clearing the tax dues, once the stay applications filed under section 220(3) are rejected.
Recently Delhi High Court has held in the case of CIT Vs. s Maruti Suzuki (India) Limited (WP (Civil) no. 5003/2013 dated : 21.02.2014 that ITAT has no power to grant stay beyond 365 days in light of third proviso to Sec. 254(2A) inserted by Finance Act, 2008. High Court further held that Courts must respect legislative mandate.
Tribunal has power to extend the period of stay beyond 365 days u/s.254(2A), third proviso, even if the delay in disposing off the appeal is not attributable to the assessee, there may be several other reasons for not disposing of the appeal by the ITAT.
A bare look at section 254(2) of the Act, which deals with rectification, makes it amply clear that a ‘mistake apparent from the record’ is rectifiable. In order to attract the application of section 254(2), a mistake must exist and the same must be apparent from the record. The power to rectify the mistake, however, does not cover cases where a revision or review of the order is intended.
