wp-2209-2019 IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2209 OF 2019 Pr. Commissioner of Income Tax-21 .. Petitioner. v/s. Creative Garments .. Respondent. Mr. Sham Walve, for Petitioner. Mr. A.K. Jasani, for Respondent. CORAM: M.S.SANKLECHA & NITIN JAMDAR, JJ. DATE : 1st OCTOBER, 2019. P.C:- At request of parties, Petition is taken up for final disposal at stage of admission. This as controversy is in narrow compass. 2 This Petition under Article 226 of Constitution of India, challenges order dated 7th May, 2018 passed by Income Tax Appellate Tribunal (the Tribunal). By impugned order dated 7 th May, 2018, Petitioner s application for rectification of order dated 2 nd November, 2011 under Section 254 (2) of Act, was dismissed. 3 impugned order dated 7th May, 2018 reads as under:- This miscellaneous petition is filed by Revenue which is delayed by more than 6 months. No reasons have been stated for delay in filing miscellaneous application. Under these facts and circumstances delay is not condoned. Moreover, we do not find any mistake, much less than apparent mistake, in order passed by Tribunal. S.R.JOSHI 1 of 3 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:37 ::: wp-2209-2019 In result, miscellaneous application filed by Revenue is dismissed. 4 From above, it is evident that Tribunal proceeded to dismiss application as being time barred in absence of any reasons for condonation of delay. above factual premise is incorrect as Petitioner had filed detailed application dated 10th April, 2018, setting out reasons for delay in filing application for rectification and seeking condonation of it. Besides, impugned order on merits found that application is not sustainable as there is no mistake in order dated 2 nd November, 2011. This again without consideration of Petitioner s submission. Thus, without any reasons. 5 In above view, we were inclined to allow Petition and restore application to Tribunal for fresh disposal in accordance with law. 6 However, Mr. Jasani, learned Counsel appearing for Respondent contends that, no purpose would be served by setting aside impugned order and restoring issue to Tribunal for fresh consideration. This as undisputedly, rectification application has been filed beyond statutory period of six months provided under Section 254(2) of Act. It is further submitted that, there are decisions of this Court in context of pre-amended Section 254(2) of Act holding that Tribunal has no power to condone delay in filing rectification application. However, Mr. Jasani, does concede that under amended Section 254 (2) of Act, there are no decisions on this aspect. It would, therefore, be appropriate for Tribunal to first deal with above issue of jurisdiction before we are called upon to decide it. S.R.JOSHI 2 of 3 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:37 ::: wp-2209-2019 7 In above view, we set aside impugned order dated 7 th May, 2018 and restore Petitioner s rectification application to Tribunal for fresh disposal in accordance with law. Needless to state it will also decide on power of Tribunal to condone delay in filing rectification application under Section 254(2) of Act. 8 Accordingly, Petition disposed of in above terms. (NITIN JAMDAR,J.) (M.S.SANKLECHA,J.) S.R.JOSHI 3 of 3 ::: Uploaded on - 04/10/2019 ::: Downloaded on - 10/10/2019 17:25:37 ::: Pr. Commissioner of Income-tax-21 v. Creative Garment