RAHUL JEE & CO. (P) LTD. v. ASSISTANT COMMISSIONER OF INCOME TAX
[Citation -2008-LL-0516-4]

Citation 2008-LL-0516-4
Appellant Name RAHUL JEE & CO. (P) LTD.
Respondent Name ASSISTANT COMMISSIONER OF INCOME TAX
Court ITAT
Relevant Act Income-tax
Date of Order 16/05/2008
Assessment Year 1988-89
Judgment View Judgment
Keyword Tags application for rectification • mistake apparent from record • rectification application • rectification of mistake • reasonable opportunity • contractual liability • reference application • period of limitation • condonation of delay • second application • prescribed period • foreign exchange • judicial opinion • land acquisition • quantum appeal • special bench • foreign party • dharamshala • time-limit • job work
Bot Summary: The Bench has also observed that once an appeal was disposed of by an order of the Tribunal under the provisions of s. 254(1) of the Act, the order became final a s far as the Tribunal was concerned. The Tribunal has no power of review and a subsequent Bench of the Tribunal could not sit in judgment over the order passed by the earlier Bench. Similar views were expressed by the Amritsar Bench of the Tribunal in Sarishti Pal vs. ITO 76 TTJ 224 and by the Delhi Bench of the Tribunal in Asstt. 254(2) reads as under: The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-s., and shall make such amendment if the mistake is brought to its notice by the assessee or the AO: 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 Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard. Before omission of s. 256 by the National Tax Tribunal Act, 2005, w.e.f. 28th Dec., 2005, a reference on question of law was to be made by the Tribunal. The contention of the assessee that for mistakes committed by the Tribunal no time-limit for rectification of mistake is necessary and the Tribunal can suo motu rectify the mistake. Under s. 254(2) the Tribunal is empowered to amend an order passed by it under s. 254(1) of the Act, at any time within the period of four years from the date of order with a view to rectify any mistake apparent from record.


K.D. Ranjan, A.M.: These miscellaneous applications by assessee have been filed against t h e orders passed by Tribunal for asst. yr. 1988-89. MA No. 558/Del/2006 is directed against order passed in respect of quantum appeal by Tribunal, Delhi Bench, New Delhi, dt. 17th Sept., 1990, in ITA No. 5121/Del/1989 and MA No. 110/Del/2005 is in respect of order passed by Tribunal in appeal against penalty under s. 271(1)(c) in ITA No. 7074/Del/1992, dt. 30th June., 1999. Misc. Appln. No. 558/Del/2006 facts of case stated in brief are that assessee for asst. yr. 1988-89 filed appeal before this Tribunal contesting four issues. first issue related to disallowance of Rs. 2,00,000 on account of expenses incurred for job work carried out through Shri Sushil Kumar, contractor. AO did not find claim of assessee as genuine. learned CIT(A) upheld stand taken by AO. Tribunal vide order dt. 17th Sept., 1990, upheld order passed by lower authorities for reasons mentioned in order. Another disallowance of Rs. 14,04,483 on account of damages claimed was rejected by AO on ground that liability to pay damages to foreign party did not crystallise in year under consideration and, therefore, amount of Rs. 14,04,483 was not deductible. order passed by authorities below was upheld by Bench. Another disallowance agitated before Tribunal was in respect of foreign travel expenses of Shri Pawan Goel amounting to Rs. 17,122. This disallowance was confirmed by Tribunal by holding "merely because travel was undertaken it does not automatically conclude that this was taken in regard to settlement of claim preferred by assessee". last disallowance confirmed by Tribunal was in respect of Rs. 80,000 made under s. 69 of Act. addition made by AO was deleted by Tribunal. assessee thereafter filed Ref. Appln. No. 1875 (Del) of 1990 [ITA No. 5121/Del/1989 for asst. yr. 1988-89] before this Tribunal. reference application filed by assessee was rejected by Tribunal, Delhi Bench "D", New Delhi, vide order dt. 18th April.,1994. While rejecting reference application Bench held as under: "8. We have given careful thought to rival submissions of parties. After taking into account arguments of parties and provisions of Foreign Exchange Regulation Act, Tribunal held that liability to pay damages to foreign party did not crystallise and therefore, amount of Rs. 14,04,483 was not deductible during this year. Whether liability to pay damages had crystallised in given case, is always finding of fact. assessee could not produce any material to show that contractual liability was accepted or became otherwise enforceable as debt against assessee. Tribunal after considering all relevant material recorded that liability did not accrue or crystallise in relevant period. other finding regarding disallowance of Rs. 2,00,000 in accounts of Shri Sushil Kumar and foreign travelling expenses of Rs. 17,122 relating to Shri Pawan Goel were disallowed after considering all relevant material available on record. findings recorded by Tribunal are based on appraisal of evidence and findings of facts. We are unable to accept that findings recorded by Tribunal are vitiated and as such they gave rise to referable questions of law." assessee also filed MA No. 203/Del/1997 [in ITA No. 5121/Del/1989 for asst. yr. 1988-89) on 28th July, 1992, requesting to rectify order dt. 17th Sept., 1990, in respect of all four additions. Tribunal, Delhi Bench "E", New Delhi, vide order dt. 24th Feb., 2006, rejected application filed under s. 254(2) by observing that there was no provision under Act requiring or empowering Bench of Tribunal to rehear appeal already decided or to review order passed on appeal. Bench discussed all four disallowances and came to conclusion that there was no mistake apparent from record so as to exercise jurisdiction under s. 254(2) of Act. Bench has also observed that once appeal was disposed of by order of Tribunal under provisions of s. 254(1) of Act, order became final s far as Tribunal was concerned. only exception was that under provisions of s. 254(2), with view to rectify mistake apparent from record, Tribunal could amend order made earlier under s. 254(1). It was further observed that where prima facie without any long drawn process of reasoning mistake was shown about which there could not be conceivably more than one mistake was shown about which there could not be conceivably more than one opinion, subsequent Bench might exercise jurisdiction under s. 254(2) of Act. In other words, only jurisdiction with Tribunal was of rectification of mistake apparent from record. It was further observed that legal position of law was settled so far as powers of Tribunal were concerned. Tribunal has no power of review and subsequent Bench of Tribunal could not sit in judgment over order passed by earlier Bench. assessee thereafter, again filed second miscellaneous application against MA No. 203/Del/1997 dt. 24th Feb., 2006. This miscellaneous application was rejected by Delhi Bench "E", vide order dt. 15th Sept., 2006, by observing as under: "We have heard rival submissions and perused material available o n record. We find that Hon ble Orissa High Court in case of CIT vs. ITAT & Ors. (1992) 102 CTR (Ori) 296: (1992) 196 ITR 838 (Ori) held that s. 254(2) of IT Act, 1961, empowers Tribunal to amend any order passed by it under sub-s. (1) with view to rectify any mistake apparent from record at any time within four years from date of order. Therefore, to attract applicability of s. 254(2), mistake, which is sought to be rectified must be apparent from record, and same must be in any order passed under sub- s. (1) of s. 254. order rejecting application for rectification under s. 254(2) is not order passed under s. 254(1) and it cannot be rectified under s. 254(2). same view was expressed by Hon ble Madhya Pradesh High Court in case of CIT vs. Smt. Gunwanti Bai (1996) 134 CTR (MP) 526: (1996) 219 ITR 632 (MP). Similar views were expressed by Amritsar Bench of Tribunal in Sarishti Pal vs. ITO (2002) 76 TTJ (Asr) 224 and by Delhi Bench of Tribunal in Asstt. CIT vs. Reading & Bates Exploration Co. in MA No. 542/Del/2005 order dt. 8th Sept., 2006. In view of above, present miscellaneous application filed by assessee against order passed under s. 254(2) is not maintainable and is accordingly dismissed." Having failed in reference application under s. 256(1) and two times in rectification of order dt.17th Sept., 1990, assessee filed third MA No. 558/Del/2006 dt. 15th Oct., 2006, against original order of Tribunal dt. 17th Sept., 1990 in ITA No. 5121/Del/1989, requesting rectification and recalling order made under s. 254(1). Since this application is delayed by 16 years from date of original order application for condonation of delay has also been filed stating therein that condonation of delay should be considered in light of Supreme Court decision in AIR 1988 SC 1560 and others and in AIR 1976 SC 1695. Since application dt. 15th Oct., 2006, is delayed by 16 years, learned Authorised Representative for assessee was requested to address Bench on application on condonation of delay. During course of hearing it is submitted by learned Authorised Representative for assessee that Tribunal had perpetuated its illegality of charging income-tax on gross income. rectification application dt. 28th July, 1992, against original order under s. 254(1) was decided on 24th Feb., 2006, after expiry of 14 years. Therefore, assessee could not be made to suffer for mistakes of Tribunal. second rectification application filed on 10th March, 2006, within few days of order dt. 24th Feb., 2006, was erroneously rejected on ground that Tribunal could not review its own order. Tribunal neither in its original appellate order nor in its both rectification orders considered entire evidence. He further submitted that present miscellaneous application has been filed on 18th Oct., 2006, against rejection of order dt. 15th Sept., 2006, in shortest possible time of about one month and petitioners have been very alert and not at all responsible for default, if any, occurred. For condonation of delay he placed reliance on following decisions: (1) AIR 1988 SC 1560 "When these factors are brought to notice of this Court, even if there are any technicalities, this Court should not feel shackled and decline to rectify that injustice or otherwise injustice noticed will remain forever blot on justice. It has been said long time ago that actus curiue neminam gravabit act of Court shall prejudice no man. This maxim is founded upon justice and good sense and affords safe and certain guide for administration of law." (2) L. Hirday Narain vs. ITO (1970) 78 ITR 26 (SC) "Power to rectify is to ensure that injustice to assessee or to Revenue may be avoided. It is implicit in nature of power and its entrustment to authority invested with quasi judicial functions under Act, that to do justice it shall be exercised when mistake apparent from record is brought to his notice by person concerned with or interested in proceedings. That power is not discretionary and ITO cannot if conditions for its exercise were shown to exist, decline to exercise it." (3) 1989 (42) ELT 532 (Del) "Asstt. Collector without giving finding on question, holding refund claimed to be time-barred rendering of finding on merits mandatory". (4) Saiyad Mohammad Bakar EI-Edroos vs. Abdulliah Hasan Arab AIR 1998 SC 1624 "It is always subservient to substantive law and in aid of justice and not to defeat object sought to be achieved. procedural law is always subservient to substantive law. Nothing can be given by procedural law, what is not sought to be given by substantive law and nothing can be taken away by procedural law, what is given by substantive law." (5) AIR 1976 SC 1695 at p. 1697 "This patent error which was perhaps due to inadvertence could and should have been suo motu corrected by High Court in exercise of its inherent jurisdiction even after expiry of ordinary period of limitation, if any." (6) ITC Ltd. vs. Superintendent of Excise & Ors. 1983 ELT 281 (Del) "For proposition that right given in law cannot be taken away. In this case duty was wrongly collected. assessee s right to recover it cannot be defeated by limitation." (7) Tara Chand Gupta vs. Union of India AIR 1971 SC 1558 at 1567 "In this view order was in non-compliance with provisions of statute, and therefore was covered by exceptions laid down in Mask and Co. s case Ind App 222: AIR 1940 PC 105. It was not order in respect of which Collector was vested with jurisdiction. That being so, provision excluding jurisdiction of civil Courts was not applicable. Indeed, order was nullity and art. 14 of Limitation Act of 1908, could not be applied to hold suit time-barred. Even if art. 14 applied, it would not be time-barred, if, as High Court pointed out, date of appellate order was taken into consideration." (8) AIR 1983 SC 954 at p. 957 "For proposition that litigant cannot be penalized on pain of being thrown out of Court on technical grounds. Justice cannot be playground by kicking ball from one Court to other depending upon which of conflicting views will ultimately prevail leaving litigant on tenterhooks." (9) (1985) 4 ECC 270 (Bom) "Orders of excise authorities without jurisdiction are null and void since they failed to take into account material evidence before them Civil Court s jurisdiction to try case not ousted." (10) AIR 1976 SC 426 "If erroneous law is found as necessary buckle between facts found and conclusions recorded, award bears its condemnation on its bosom. minimal judicialisation by statement, laconic or lengthy, of essential law that guides decision, is not only reasonable and desirable but has, over ages, been observed by arbitrators and quasi judicial Tribunals as norm of processual justice." (11) CIT vs. Autokast Ltd. (1997) 138 CTR (Ker) 75: (1997) 90 TAXMAN 103 (Ker) "We have referred, although really unnecessarily, in view of law declared by Supreme Court (supra), especially because reference comes before us with observation of Tribunal that there was sharp cleavage of judicial opinion on question. In our judgment, decision of apex Court is more than sufficient to resolve this so-called cleavage of judicial opinion. It must be emphasised that although in order of ITO, first appellate authority concerned, there is reference to Challapalli Sugars Ltd. vs. CIT (supra), it has to be stated that neither first appellate authority nor Tribunal has taken trouble to read and appreciate decision of apex Court, in which case situation would have been quite contrary and authorities would not have been found to be clustered in so-called judicial cleavage. Even in statement of case decision of apex Court is conspicuous by its absence. It is unnecessary, but, as we have emphasised at outset on weightage of decision of apex Court, it is disheartening that said decision, we are afraid, has not been referred to satisfactorily in decisions placed for our consideration, some of which have been referred to by us. Much judicial time could have been avoided had this been done which is essential in constitutional law." learned Authorised Representative for assessee also relied on decision of Hon ble Supreme Court in case of A.R. Antulay vs. R.S. Nayak AIR 1988 SC 1560 and submitted that technicalities should not defeat cause of justice. Relying on decision of Hon ble Supreme Court in case of Collector, Land Acquisition & Anr. vs. Mst. Katiji & Ors. (1987) 62 CTR (Syn) 23 (SC): (1987) 167 ITR 471 (SC), he submitted that substantial justice has to be rendered ignoring technical considerations like delay in filing application seeking remedy. Thus in view of decisions cited above it has been pleaded that application for condonation of delay in filing miscellaneous application deserves to be allowed. On other hand, learned Departmental Representative, kly opposed t h e move of assessee for condonation of delay. She submitted that power to condone delay is prescribed by statute. If procedure does not provide for condonation of delay, same cannot be allowed. She further submitted that non-consideration of argument does not amount to mistake. She placed reliance on following decisions: (i) Jain Dharamshala Charitable Trust vs. CIT (1994) 121 CTR (Del) 86 No question of law arose out of Tribunal s order as there was no error apparent from record. In garb of application for rectification, assessee wanted to reopen and reargue whole matter, which was beyond scope of s. 254(2); (ii) Gayways Publicity (P) Ltd. vs. CIT (1995) 211 ITR 506 (Del) If assessee was aggrieved by finding of Tribunal, then it ought to have challenged original order by filing application under s. 256(1) which it did not do. (iii) CIT & Anr. vs. ITAT & Anr. (1994) 210 ITR 397 (Ori) power under s. 254(2) does not clothe Tribunal with jurisdiction to review its earlier decision or to rewrite fresh judgment. (iv) CIT vs. Ramesh Electric & Trading Co. (1993) 203 ITR 497 (Bom) Under s. 254(2) power of rectification can be exercised only when mistake which is sought to be rectified is obvious and patent mistake which is apparent from record, and not mistake which requires to be established by arguments and long drawn process of reasoning on points on which there may conceivably be two opinions. Failure of Tribunal to consider argument advanced by either party for arriving at conclusion is not error apparent on record, although it may be error of judgment. Tribunal cannot, in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion; (v) Ras Bihari Bansal vs. CIT & Anr. (2007) 293 ITR 365 (Del) It is well settled that oversight of fact cannot constitute apparent mistake rectifiable under this section. Similarly, failure of Tribunal to consider argument advanced by either party for arriving at conclusion is not error apparent on record, although it may be error of judgment. mere fact that Tribunal had not allowed deduction, even if conclusion is wrong, that will be no ground for moving application under s. 254(2) of Act. Further, in garb of application for rectification, assessee cannot be permitted to reopen and reargue whole matter, which is beyond scope of this section. She further submitted that application for rectification under s. 254(2) of Act should have been filed within period of four years from date of order sought to be rectified. There is no provision under s. 254(2), which empowers Tribunal to condone delay when application for condonation (sic) is not filed within period of four years. She placed reliance on decision of Tribunal, Special Bench, in case of Arvindbhai H. Shah v s . Asstt. CIT (2004) 84 TTJ (Ahd)(SB) 725: (2004) 91 ITD 101 (Ahd)(SB) wherein it has been held that rectification of order passed under s. 254(1) cannot be made after period of four years. She further submits that mistakes apparent from record can only be rectified and assessee is not permitted to reargue his case on merits so as to arrive at different conclusion. It will amount to review of order which is not permitted. assessee could have gone in appeal if he was not satisfied with order of Tribunal. She placed reliance on decision of Hon ble Supreme Court in case of CIT vs. Sun Engineering Works (P) Ltd. (1992) 107 CTR (SC) 209: (1992) 198 ITR 297 (SC) for proposition that decision rendered by Court should be read in context in which it was rendered. Therefore, decisions relied upon by learned Authorised Representative for assessee cannot be applied to facts of present case. learned Departmental Representative further submitted that Tribunal has no power to condone delay, if application is filed beyond period of four years. We have heard both parties and considered relevant material and judicial pronouncements referred to by both parties carefully. There is no dispute that present application has been filed after expiry of period of 16 years from date of order sought to be rectified. Sec. 254(2) reads as under: "(2) Tribunal may, at any time within four years from date of order, with view to rectifying any mistake apparent from record, amend any order passed by it under sub-s. (1), and shall make such amendment if mistake is brought to its notice by assessee or AO: Provided that amendment which has effect of enhancing assessment or reducing refund or otherwise increasing liability of assessee, shall not be made under this sub-section unless Tribunal has given notice to assessee of its intention to do so and has allowed assessee reasonable opportunity of being heard." Thus from provisions of s. 254(2) it is clear that period of limitation prescribed under section is four years from date of order sought to be rectified. present application has been filed after expiry of period of 16 years. There is no provision under s. 254(2) to entertain rectification application received after expiry of period of four years. IT Act is self- contained code. Wherever legislature intended to condone delay provisions have been incorporated in statute itself. Sec. 253(5) provides for condonation of delay but such provisions are absent in respect of applications seeking rectification of order passed under s. 254(1) of Act. Now let us examine whether delay in filing application seeking rectification can be condoned under provisions of Limitation Act, 1963. Sec. 5 of Limitation Act provides for extension of prescribed period in case of any appeal or any application other than application under any of provisions of Order XXI of CPC, 1908, if appellant or applicant has satisfied Court that he had sufficient cause for not preferring appeal or making application within such period. It is settled law that word "Court" in s. 5 of Limitation Act signifies "Court" in strict sense. In Sakuru vs. Tangi AIR 1985 SC 1279, it is held that provisions of Limitation Act, 1963, apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi judicial Tribunals or executive authorities, notwithstanding fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under CPC. In Sukhdeo vs. State of U.P. & Ors. AIR 1992 All 142, it was held that proceedings under s. 28A of Land Acquisition Act, before Collector are not proceedings in "Courts" and hence provisions of s. 5 of Limitation Act do not apply. Therefore, provisions of s. 5 of Limitation Act, cannot be applied to order passed by Tribunal, quasi judicial authority. Learned Authorised Representative of assessee has placed reliance on several decisions referred to above in support of his contention that delay in filing of application for rectification dt. 15th Oct., 2006, should be condoned. We have gone through ratios of decisions referred by learned Authorised Representative of assessee carefully. It is not clear under what context these decisions were rendered. It is also not clear whether relevant statute under which said decisions were rendered, contained provisions relating to limitation or were governed by provisions of Limitation Act, 1963. No such information has been provided in this regard by learned counsel of assessee. Moreover as pointed out by learned senior Departmental Representative that ratio of decision cannot be applied without reference to context under which same was rendered. We are inclined to agree with her in this regard. Hon ble Supreme Court in case of CIT vs. Sun Engineering Works (P) Ltd. (supra) at p. 320 observed as under: " It is neither desirable nor permissible to pick out word or sentence from judgment of this Court, divorced from context of question under consideration and treat it to be complete law declared by this Court. judgment must be read as whole and observations from judgment have to be considered in light of questions which were before this Court. decision of this Court takes its colour from questions involved in case in which it is rendered and, while applying decision to later case, Courts must carefully try to ascertain true principle laid down by decision of this Court and not to pick out words or sentences from judgment, divorced from context of questions under consideration by this Court, to support their reasonings. In Madhav Rao Jivaji Rao Scindia Bahadur vs. Union of India (1971) 3 SCR 9: AIR 1971 SC 530, this Court cautioned: It is not proper to regard word, clause or sentence occurring in judgment of Supreme Court, divorced from its context, as containing full exposition of law on question when question did not even fall to be answered in that judgment ." learned Authorised Representative of assessee has not referred to questions while citing ratios of various decisions which were answered by Hon ble Courts. learned Authorised Representative of assessee has also not demonstrated as to how decisions relied upon by him were relevant in context of condonation of delay particularly when there is no provision under s. 254(2) of Act empowering Tribunal to condone delay. We may also like to discuss circumstances under which decision in case of Collector, Land Acquisition & Anr. vs. Mst. Katiji & Ors. (supra) relied upon by assessee was rendered. In this case appeal was preferred by State of Jammu and Kashmir before Hon ble Jammu and Kashmir High Court. appeal was dismissed rejecting application for condonation of delay as time-barred being four days beyond time. Hon ble Supreme Court condoned delay on ground that when substantial justice and technical considerations were pitted against each other, cause of substantial justice deserved to be preferred. Hon ble Supreme Court condoned delay and remitted matter to High Court to dispose of appeal on merits. In this case s. 5 of Limitation Act was held to be applicable as matter related to appeal before Hon ble Jammu and Kashmir High Court. matter before us does not relate to appeal where Tribunal is empowered to condone delay under s. 253(5) of Act. Thus decision in case of Collector, Land Acquisition vs. Mst. Katiji (supra) relied upon by assessee is not relevant to miscellaneous application seeking condonation of delay as this Tribunal has no power to condone delay under s. 254(2) of Act. Other decisions relied upon by learned Authorised Representative of assessee referred to above are not relevant at all as facts of case and context in which they have been rendered, are not known. Accordingly, in view of decision of Hon ble Supreme Court in case of CIT vs. Sun Engineering Works (P) Ltd. (supra) ratios of various decisions cannot be applied to condone delay. Another contention of learned Authorised Representative of assessee that present application for rectification has been filed immediately after decision of Tribunal on second rectification application is not relevant. period of four years has to be considered from date of relevant. period of four years has to be considered from date of original order i.e., 17th Sept., 1990, and not from date on which second application for rectification was decided. Finality of proceeding is important feature to be observed while deciding matter. Orders passed under s. 254(1) are final subject to provisions of s. 256 of Act. Before omission of s. 256 by National Tax Tribunal Act, 2005, w.e.f. 28th Dec., 2005, reference on question of law was to be made by Tribunal. In instant case reference application was rejected by Tribunal vide order dt. 14th April., 1994. There is nothing on record to suggest that reference application was made by assessee before High Court under s. 256(2) of Act. Therefore, order passed by Tribunal on 17th Sept., 1990, has become final. contention of assessee that for mistakes committed by Tribunal no time-limit for rectification of mistake is necessary and Tribunal can suo motu rectify mistake. We are unable to agree with proposition made by learned Authorised Representative of assessee on simple ground that s. 254(2) does not provide for any condonation of delay. If contention of assessee is accepted it will open floodgates for litigation upsetting settled principle of finality of assessment proceedings. learned Authorised Representative of assessee has also contended that assessee cannot be made to suffer for wrong committed by Tribunal by deciding rectification application after expiry of 14 years. We are unable to agree with submissions made by him. No doubt application for rectification was made by assessee on 28th July, 1992, within period of four years. rectification application has been decided by Tribunal on merits vide order dt. 24th Feb., 2006, after discussing all four issues. Therefore, assessee cannot have any grievance against t h e delayed decision on miscellaneous application seeking rectification of mistake apparent from records. If assessee was not satisfied with outcome of miscellaneous application he could have gone to Hon ble High Court seeking remedy. Settled issues cannot be upset by moving rectification that too after expiry of period of 16 years. Tribunal, Ahmedabad Bench "C" (Special Bench) (judgment rendered by five member Bench) in case of Arvindbhai H. Shah vs. Asstt. CIT (supra) held that no rectification can be made after period of four years on principle of equity and justice or on basis of theory that justice should be done. time-limit of four years to make rectification under s. 254(2) applies to both suo motu action of Tribunal as well as action taken on request of parties. Since in this case miscellaneous application seeking rectification of order passed by Tribunal under s. 254(1) has been filed after expiry of period of 16 years and since there is no provision under IT Act and provisions of s. 5 of Limitation Act are not applicable to proceedings before quasi judicial authorities like Tribunal, condonation of delay cannot be allowed. Therefore, miscellaneous application filed by assessee is dismissed as barred by limitation. Since we have dismissed application on grounds of limitation, we do not feel it necessary to decide rectification application on merits. Misc. Appln. No. 110/Del/2005: assessee has also filed MA No. 110/Del/2005 (filed on 20th April, 2004 Diary No. 1228 dt. 21st April, 2004) against order passed by Tribunal in case of Rahuljee & Co. Ltd. vs. Asstt. CIT in ITA No. 7074/Del/1992 dt. 30th June, 1999. Tribunal, Delhi Bench C , New Delhi, in order dt. 30th June, 1999, upheld penalty imposed under s. 271(1)(c) on Rs. 2,17,110, addition confirmed in quantum appeal. assessee vide miscellaneous application dt. 19th April, 2004, filed on 20th April, 2004, has requested to recall order on ground that certain evidence were not considered while deciding appeal against confirming penalty by CIT(A). assessee has also filed application dt. 19th April, 2004, on 20th April, 2004, requesting condonation of delay. Under s. 254(2) Tribunal is empowered to amend order passed by it under s. 254(1) of Act, at any time within period of four years from date of order with view to rectify any mistake apparent from record. In instant case application for rectification has been filed on 20th April, 2004. order confirming penalty imposed under s. 271(1)(c) of Act was passed on 30th June, 1999. application for rectification of mistake apparent from record should have been filed by 30th June, 2003. Since miscellaneous application seeking rectification of order dt. on 30th June, 1999, was filed on 20th April, 2004, which is beyond prescribed period of four years from date of order sought to be amended, learned Authorised Representative of assessee was requested to address Bench on condonation of delay. learned Authorised Representative of assessee relied on arguments and decisions referred to in MA No. 558/Del/2005. learned Departmental Representative also relied on arguments advanced by her in said miscellaneous application. We have heard both parties. Since miscellaneous application has been filed beyond time prescribed under s. 254(2) of Act and we have discussed issue relating to condonation of delay elaborately in assessee s MA No. 558/Del/2005 referred to above and have come to conclusion that condonation of delay cannot be allowed, this miscellaneous application is squarely covered by our order referred to above. Accordingly, miscellaneous application filed by assessee is dismissed, being barred by limitation. Since we have dismissed application on grounds of limitation, we do not feel it necessary to decide rectification application on merits. In result, both miscellaneous applications filed by assessee are dismissed. *** RAHUL JEE & CO. (P) LTD. v. ASSISTANT COMMISSIONER OF INCOME TAX
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