Income Tax Appellate Tribunal - Kolkata
M/S D.D. Deposits And Advances Pvt Ltd., ... vs Cit, Kolkata-1, Kolkata on 1 December, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH : KOLKATA
[Before Hon'ble Sri P.M.Jagtap, AM & Sri N.V.Vasudevan, JM]
M.A.No.111/Kol/2016
(A/o I.T.A No. 1214/Kol/2013)
Assessment Year : 2008-09
M/s. D.D.Deposits & Advances (P)Ltd. -vs.- C.I.T., Kolkata-1,
Kolkata Kolkata
[PAN : AAACD 5388 H]
(Appellant) (Respondent)
For the Appellant : Shri S.M.Surana, Advocate
For the Respondent : Shri David Z.Chowngthu, Addl. CIT(DR)
Date of Hearing : 01.12.2017.
Date of Pronouncement : 01.12.2017.
ORDER
Per N.V.Vasudevan, JM
This is a Miscellaneous Application filed by the Assessee u/s 254 (2) of the Income Tax Act, 1961 (Act) praying for recalling the order dated 10.08.2015 passed by the Tribunal for a limited purpose of adjudicating ground No.3 raised by the assessee in the grounds of appeal. It is the plea of the assessee that the aforesaid grounds of appeal has not been decided by the Tribunal and therefore to that extent the order of Tribunal suffers from a mistake apparent on the face of the record. It has been prayed that the order should be recalled for the limited purpose of deciding ground no.3.
2. As we have already seen that the Tribunal passed an order on 10.08.2015. This Miscellaneous Application was filed by the assessee on 11.08.2016. The registry has raised an objection that the miscellaneous application is time barred. It is the plea of the assessee that the objection raised by the registry is not tenable. The Miscellaneous application was posted for hearing on the objection raised by the registry.
2 M.A.No.111/Kol/2016(A/o ITA No.1214/Kol/2013) M/s. D.D.Deposits & Advances (P)Ltd.
A.Yr.2008-09
3. We have heard the rival submissions. Section 254(2) of the Act of 1961 prior to the amendment by the Finance Act, 2016 w.e.f.1.6.2016 reads as under:-
"254(2) The Appellate 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-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the 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 assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard
4. After the Amendment by the Finance Act, 2016, w.e.f. 1.6.2016, Sec.254(2) read as under:
"254(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:
5. It can be seen from the aforesaid amendment that the time limit for filing Miscellaneous application u/s.254(2) has been curtailed to 6 months from the date of the passing of the order from a period of 4 years from the date of the order. The admitted facts in the present M.A. are that the order against which the present M.A. is being filed was passed prior to 1.6.2016 and the application u/s.254(2) in respect of such order is filed after 1.6.2016. The question before us is as to whether in respect of orders passed prior to 1.6.2016 and where M.A. u/s.254(2) in respect of such orders is filed after 1.6.2016, whether the time limit prescribed u/s.254(2) prior to the Amendment by Finance Act, 2016 should apply or the time limit prescribed after the Amendment by Finance Act, 2016 should apply?
6. The Hon'ble M.P.High Court in Writ Petition No.4144/2017 in the case of District Central Co-op. Bank Ltd., Raisen Vs. Union of India vide its judgment dated 09th October, 2017 had to deal with an identical case such as the Assessee. The 2 3 M.A.No.111/Kol/2016 (A/o ITA No.1214/Kol/2013) M/s. D.D.Deposits & Advances (P)Ltd.
A.Yr.2008-09 Hon'ble Court relied on the decision of the apex Court in the case of M. P. Steel Corporation Vs. Commissioner of Central Excise reported in (2015) 7 SCC 58 wherein it was held that though periods of limitation, being procedural law, are to be applied retrospectively, yet if a shorter period of limitation is provided by a later amendment to a statute, such period would render the vested right of action contained in the statute nugatory as such right of action would now become time barred under the amended provision. Therefore a statute which while procedural in its character, if it affects vested rights adversely it has to be construed as prospective. Following the aforesaid view, the Hon'ble M.P.High Court held as follows:
"08. Keeping in view the judgment referred by their lordships in the aforesaid case and the judgment delivered by their lordships in the M.P. Steel Corporation (Supra), in the present case also the new law of limitation providing a shorter period cannot certainly extinguish a vested right of action.
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 retrospective 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 four years and the same has not been done till the amendment came into force extinguishing the right to file an appeal.
11. In the considered opinion of this Court, application preferred by the assessee should not have been dismissed by the Tribunal on account of the amendment which has reduced the period of limitation of four years to six months. 12-
Resultantly, the impugned order passed by the respondent on 23/12/2016 is hereby quashed and the writ petition stands allowed. The Income Tax Appellate Tribunal is directed to decide the application preferred under Section 254(2) on merits within a period of three months from the date of receipt of certified copy of this order. The parties shall appear before the Tribunal on 30th of October, 2017."
7. Following the aforesaid decision, we have to hold that the present MA though filed after 1.6.2016 will continue to be governed by the law of limitation laid down u/s.254(2) on the date when the order against which the MA is sought to be filed was passed and not law as per the law as amended by the amendment w.e.f. 1.6.2016. The 3 4 M.A.No.111/Kol/2016 (A/o ITA No.1214/Kol/2013) M/s. D.D.Deposits & Advances (P)Ltd.
A.Yr.2008-09 MA therefore has to be construed as one filed within the period of limitation and has to be accepted as validly presented within the period of limitation. The objection of the Registry is therefore held to be not in accordance with law.
8. As far as the merits of the miscellaneous application is concerned it is not disputed before us that ground no.3 raised by the assessee in its appeal was not adjudicated. Therefore to this extent there is a mistake apparent on the face of the record. We therefore recall the order dated 10.08.2015 for a limited purpose of deciding ground no.3 raised by the assessee in its appeal. The registry is directed to fix the case for hearing in due course after service of notice to the parties.
9. In the result the Miscellaneous Application by the assessee is allowed.
Order pronounced in the Court on 01.12.2017.
Sd/- Sd/- [P.M.Jagtap] [ N.V.Vasudevan ] Accountant Member Judicial Member Dated : 01.12.2017. [RG Sr.PS] Copy of the order forwarded to:
1.M/s. D.D.Deposits & Advances (P)Ltd., 16, G.C.Avenue, 7th Floor, Kolkata-700072.
2. Pr. C.I.T., Kolkata-1, Kolkata.
3. CIT(DR), Kolkata Benches, Kolkata.
True copy By Order Sr.Private Secretary Head of Office/DDO, ITAT Kolkata Benches, Kolkata.
4 5 M.A.No.111/Kol/2016(A/o ITA No.1214/Kol/2013) M/s. D.D.Deposits & Advances (P)Ltd.
A.Yr.2008-09 5