ORDER
Per K.D. Ranjan, Accountant Member. - These Miscellaneous applications by the assessee have been filed against orders passed by the ITAT for assessment year 1988-89. M.A. No. 558 (Delhi) of 2006 is directed against the order passed in respect of quantum appeal by the ITAT Delhi Bench, New Delhi dated 17-9-1990 in IT Appeal No. 5121 (Delhi) of 1989 and M.A. No. 110 (Delhi) of 2005 is in respect of order passed by the Tribunal in appeal against penalty under section 271(1)(c) in IT Appeal No. 7074/Delhi/1992, dated 30-6-1999.
Misc. App. No. 558 (Delhi) of 2006
2. The facts of the case stated in brief are that the assessee for assessment year 1988-89 filed appeal before this Tribunal contesting four issues. The first issue related to disallowance of Rs. 2,00,000 on account of expenses incurred for job work carried out through Shri Sushil Kumar, the contractor. The Assessing Officer did not find the claim of the assessee as genuine. The ld. CIT (Appeals) upheld the stand taken by the Assessing Officer. ITAT vide order dated 17-9-1990 upheld the order passed by the lower authorities for the reasons mentioned in the order. The another disallowance of Rs. 14,04,483 on account of damages claimed was rejected by the Assessing Officer on the ground that the liability to pay damages to foreign party did not crystallize in the year under consideration and, therefore, the amount of Rs. 14,04,483 was not deductible. The order passed by the authorities below was upheld by the Bench. Another disallowance agitated before the Tribunal was in respect of foreign travel expenses of Shri Pawan Goel amounting to Rs. 17,122. This disallowance was confirmed by ITAT by holding "merely because travel was undertaken it does not automatically conclude that this was taken in regard to settlement of claim preferred by the assessee". The last disallowance confirmed by the ITAT was in respect of Rs. 80,000 made under section 69 of the Act. The addition made by the Assessing Officer was deleted by the Tribunal.
3. The assessee thereafter filed Reference Application No. 1875 (Delhi) of 90 [ITA No. 5121 (Delhi) of 1989 for assessment year 1988-89] before this Tribunal. The Reference Application filed by the assessee was rejected by ITAT Delhi Bench "D" New Delhi vide order dated 18-4-1994. While rejecting the reference application the Bench held as under:—
"8. We have given careful thought to the rival submissions of the parties. After taking into account arguments of the parties and provisions of Foreign Exchange Regulation Act, the ITAT held that the liability to pay damages to the foreign party did not crystallize and, therefore, the amount of Rs. 14,04,483 was not deductible during this year. Whether liability to pay damages had crystallized in a given case, is always a finding of fact. The assessee could not produce any material to show that contractual liability was accepted or became otherwise enforceable as a debt against the assessee. The Tribunal after considering all relevant material recorded that the liability did not accrue or crystallize in the relevant period. The other finding regarding disallowance of Rs. 2,00,000 in the 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. The findings recorded by the Tribunal are based on appraisal of evidence and findings of facts. We are unable to accept that findings recorded by the Tribunal are vitiated and as such they gave rise to referable questions of law."
4. The assessee also filed Miscellaneous Application No. 203/Delhi/97 [in ITA. No. 5121 (Delhi) of 1989 for assessment year 1988-89] on 28-7-1992 requesting to rectify the order dated 17-9-1990 in respect of all four additions. ITAT, Delhi Bench 'E' New Delhi, vide order dated 24-2-2006 rejected the application filed under section 254(2) by observing that there was no provision under the Act requiring or empowering a Bench of the Tribunal to re-hear an appeal already decided or to review the order passed on an appeal. The Bench discussed all the four disallowances and came to the conclusion that there was no mistake apparent from record so as to exercise the jurisdiction under section 254(2) of the Act. The Bench has also observed that once an appeal was disposed off by an order of the Tribunal under the provisions of section 254(1) of the Act, the order became final as far as the Tribunal was concerned. The only exception was that under the provisions of section 254(2), with a view to rectifying a mistake apparent from the record, the Tribunal could amend an order made earlier under section 254(1). It was further observed that where prima facie without any long drawn process of reasoning a mistake was shown about which there could not be conceivably more than one opinion, subsequent Bench might exercise jurisdiction under section 254(2) of the Act. In other words, the only jurisdiction with the Tribunal was of rectification of mistake apparent from record. It was further observed that the legal position of law was settled so far as the powers of the Tribunal were 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.
5. The assessee thereafter, again filed second Miscellaneous Application against M.A. No. 203/Delhi/97, dated 24-2-2006. This M.A. was rejected by Delhi Bench "E" vide order dated 15-9-2006 by observing as under:—
"We have heard the rival submissions and perused the materials available on record. We find that the Hon'ble Orissa High Court in the case of CIT v. ITAT 196 ITR 838 held that section 254(2) of the Income-tax Act, 1961 empowers the Tribunal to amend any order passed by it under sub-section (1) with a view to rectify any mistake apparent from the record at any time within four years from the date of the order. Therefore, to attract the applicability of section 254 (2), the mistake, which is sought to be rectified must be apparent from the record, and the same must be in any order passed under sub-section (1) of section 254. An order rejecting an application for rectification under section 254(2) is not an order passed under section 254(1) and it cannot be rectified under section 254(2). The same view was expressed by the Hon'ble Madhya Pradesh High Court in the case of Commissioner Of Income-Tax v. Smt. Gunwanti Bai 219 ITR 632 (MP) . Similar views were expressed by the Amritsar Bench of the Tribunal in Sarishti Pal v. ITO 76 TTJ 224 (Asr.) and by the Delhi Bench of the Tribunal in ACIT, Circle-1, Dehradun v. Reading & Bates Exploration Co. in MA. No. 542 (Delhi) of 2005 order dated 8-9-2006. In view of the above, the present MA filed by the assessee against order passed under section 254(2) is not maintainable and is, accordingly, dismissed."
6. Having failed in reference application under section 256(1) and two times in rectification of order dated 17-9-1990, the assessee filed third Miscellaneous Application No. 558 (Delhi) of 2006, dated 15-10-2006 against original order of ITAT dated 17-9-1990 in ITA. No. 5121 (Delhi) of 1989 requesting the rectification and recalling the order made under section 254(1). Since this application is delayed by 16 years from the date of original order an application for condonation of delay has also been filed stating therein that condonation of delay should be considered in the light of the Supreme Court decision in A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 and in State of Gujarat v. Sardar Begum AIR 1976 SC 1696. Since the application dated 15-10-2006 is delayed by 16 years, the ld. AR of the assessee was requested to address the Bench on application on condonation of delay.
7. During the course of hearing it is submitted by the ld. AR of the assessee that the Tribunal had perpetuated its illegality of charging Income-tax on gross income. The rectification application dated 28-7-1992 against the original order under section 254(1) was decided on 24-2-2006 after expiry of 14 years. Therefore, the assessee could not be made to suffer for the mistakes of the Tribunal. The second rectification application filed on 10-3-2006 within few days of the order dated 24-2-2006 was erroneously rejected on the ground that the Tribunal could not review its own order. The Tribunal neither in its original appellate order nor in its both the rectification orders considered the entire evidence. He further submitted that the present Miscellaneous Application has been filed on 18-10- 2006 against the rejection of order dated 15-9-2006 in the shortest possible time of about one month and the petitioners have been very alert and not at all responsible for the default, if any, occurred. For condonation of delay he placed reliance on the following decisions : —
(1)
A.R. Antulay's case (supra)
". . . When these factors are brought to the notice of this court, even if there are any technicalities, this court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that "
actus curiue neminam gravavit" an act of court shall prejudice no man. This maxim is found in upon justice and good sense and affords a safe and certain guide for the administration of law." (p. 1560)
(2)
L. Hirday Narain v.
ITO [1970] 78 ITR 26, 27 (SC)
"Power to rectify is to ensure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of power and its entrustment to the authority invested with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from record is brought to his notice by a person concerned with or interested in the proceedings. That power is not discretionary and the ITO cannot if conditions for its exercise were shown to exist decline to exercise it".
(3)
Chandra Radio House v.
UOI 1989 (42) ELT 532 (Delhi)
"Asstt. Collector without giving finding on the question, holding refund claimed to be time barred—rendering of finding on merits mandatory."
(4)
Saiyad Mohd. Bakar El-Edroos v.
Abdulhabib Hasan Arab AIR 1998 SC 1624
"It is always subservient to substantive law and in aid of justice and not to defeat the object sought to be achieved. A procedural law is subservient to substantive a law. Nothing can be given by procedural law. What is not sought to be given by a substantive law and nothing can be taken away by the procedural law, what is given by the substantive law."
(5)
Sardar Begum's case (
supra)
"This patent error which was perhaps due to in advertence could and should have been
suo motu corrected by the High Court in the exercise of in its inherent jurisdiction even after the expiry of ordinary period of limitation, if any."
(6)
ITC Ltd. v.
Superintendent of Central Excise 1983 (12) ELT 281 (Delhi)
"For the proposition that a 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 v.
Union of India AIR 1971 (SC) 1558
"In this case the order was in non-compliance of the provisions of the statute and therefore was covered by the exceptions laid down in
Mask & Co.'s case 67 Ind. App 222 : AIR 1940 PC 105. It was not an order to respect of which the Collector was invested with jurisdiction. That being so, the provision excluding the jurisdiction of Civil Courts was not applicable. Indeed, the order was a nullity and article 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if article 14 applied, it would not be time-barred, if, as the High Court pointed out, the date of the appellate order was taken into consideration." (p. 1567)
(8)
Bhagwan Dass Arora v.
First Addl. Distt. Judge AIR 1983 SC 954 at page 957
"For the proposition that a litigant cannot be penalized on the pain of being thrown out of the court on the technical grounds. Justice cannot be a play-ground by kicking the ball from one court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks."
(9)
4 ECC 270
"Orders of Excise authority without jurisdiction and
null and void since they fail to take into account material evidence before them - Civil Courts' jurisdiction to try case not custed."
(10)
Rohtas Industries Ltd. v.
Rohtas Industries Staff Union AIR 1976 SC 425
"If erroneous law is found as the necessary buckle between the facts found and the conclusions recorded, the award bears its condemnation on its bosom. A minimal judicialisation by statement, laconic or lengthy, of the essential law that guides the decision, is not only reasonable and desirable but has, over the ages, been observed by arbitrators and quasi-judicial Tribunals as a norm of processual justice."
(11)
CIT v.
Autokast Ltd. [1997] 90 Taxman 103 (Ker.)—
"We have referred although really unnecessarily, in view of the law declared by the Supreme Court (
supra) especially because the reference comes before us with an observation of the Tribunal that there was a sharp cleavage of judicial opinion on the question. In our judgment, the decision of the Apex Court is more than sufficient to dissolve this so-called cleavage of judicial opinion. It must be emphasized that although in the order of the ITO, the first appellate authority concerned, there is a reference to
Challapalli Sugar Ltd.'s case (
supra), it has to be stated that neither the first appellate authority nor the Tribunal has taken the trouble to read and appreciate the decision of the Apex Court in which case the situation would have been quite contrary and the authorities would not have been found to be prescribed in the so- called judicial cleavage. Even in the statement of the case, the decision of the Apex Court is conspicuous by its absence. It is unnecessary, but, as we have emphasized at the outset on the weightage of the decision of the Apex Court, it is disheartening that the said decision, we are afraid, has not been referred to satisfactorily in the 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."
The ld. AR of the assessee also relied on the decision of Hon'ble Supreme Court in the case of A.R. Antulay (supra) and submitted that technicalities should not defeat the cause of justice. Relying on the decision of the Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mast. Katiji [1987] 167 ITR 471 he submitted that the substantial justice has to be rendered ignoring the technical considerations like delay in filing the application seeking remedy. Thus in view of the decisions cited above it has been pleaded that the application for condonation of delay in filing the Miscellaneous Application deserves to be allowed.
8. On the other hand, the ld. DR, strongly opposed the move of the assessee for condonation of delay. She submitted that the power to condone the delay is prescribed by the statute. If the procedure does not provide for condonation of delay, the same cannot be allowed. She further submitted that non-consideration of an argument does not amount to mistake. She placed reliance on the following decisions:—
(i)
Jain Dharamshala Charitable Trust v.
CIT [1994] 77 Taxman 424 (Delhi)—
No question of law arose out of the Tribunal's order as there was no error apparent from record. In the garb of an application for rectification, the assessee wanted to reopen and re-argue the whole matter, which was beyond the scope of section 254(2);
(ii)
Gayways Publicity Pvt. Ltd. v. Commissioner Of Income-Tax. [1995] 211 ITR 506 (Delhi)—
If the assessee was aggrieved by the finding of the Tribunal then it ought to have challenged the original order by filing an application under section 256(1) which it did not do.
(iii)
CIT v.
ITAT [1994] 210 ITR 397 (Ori.)—
The power under section 254(2) does not clothe the Tribunal with the jurisdiction to review its earlier decision or to re-write a fresh judgment.
(iv)
CIT v.
Ramesh Electric & Trading Co. [1993] 203 ITR 497 (Bom.) —
Under section 254(2) the power of rectification can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by the arguments and a long drawn process of reasoning on points on which they may conceivably be two opinions. Failure of the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent from record, although it may be an error of judgment. The 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 v.
CIT [2007] 293 ITR 365 (Delhi)—
It is well settled that an oversight of a fact cannot constitute an apparent mistake rectifiable under section 254. The failure of the Tribunal to consider an argument by either party for arriving at a conclusion is not an error apparent from record although it may be an error of judgment. The mere fact the Tribunal had not allowed deduction even if the conclusion is wrong will be no ground for moving an application under section 254(2) of the Act. Further in the garb of an application for rectification the assessee cannot be permitted to reopen and reargue the whole matter which is beyond the scope of the section.
She further submitted that application for rectification under section 254(2) of the Act should have been filed within the period of four years from the date of order sought to be rectified. There is no provision under section 254(2), which empowers the Tribunal to condone the delay when an application for condonation is not filed within the period of four years. She placed reliance on the decision of ITAT, Special Bench in the case of Arvind Bhai H. Shah v. Asstt. CIT [2004] 91 ITD 101 (Ahd.) wherein it has been held that the rectification of an order passed under section 254(1) cannot be made after the period of four years. She further submits that mistakes apparent from record can only be rectified and the assessee is not permitted to re-argue his case on merits so as to arrive at a different conclusion. It will amount to review of the order which is not permitted. The assessee could have gone in appeal if he was not satisfied with the order of ITAT. She placed reliance on the decision of the Hon'ble Supreme Court in the case of CIT v. Sun Engg. Ltd. [1992] 198 ITR 297 for the proposition that a decision rendered by a court should be read in the context in which it was rendered. Therefore the decisions relied upon by ld. AR of the assessee cannot be applied to the facts of the present case. The ld. DR further submitted that the Tribunal has no power to condone the delay if the application is filed beyond the period of four years.
9. We have heard both the parties and considered the relevant material and judicial pronouncements referred to by both the parties carefully. There is no dispute that present application has been filed after expiry of period of 16 years from the date of order sought to be rectified. Section 254(2) reads as under :
"(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."
Thus from the provisions of section 254(2) it is clear that the period of limitation prescribed under the section is four years from the date of order sought to be rectified. The present application has been filed after expiry of period of 16 years. There is no provision under section 254(2) to entertain the rectification application received after the expiry of period of four years. The Income-tax is self contained code. Where ever the Legislature intended to condone the delay the provisions have been incorporated in the statute itself. Section 253(5) provides for condonation of delay but such provisions are absent in respect of applications seeking rectification of order passed under section 254(1) of the Act.
10. Now let us examine whether the delay in filing application seeking rectification can be condoned under the provisions of the Limitation Act, 1963. section 5 of the Limitation Act provides for the extension of the prescribed period in case of any appeal or any application other than an application under any of the provisions of order XXI of the Code of Civil Procedure, 1908 if the appellant or the applicant satisfies the court that he had suffi- cient cause for not preferring the appeal or making the applica- tion within such period. It is a settled law that the word "Court" in section 5 of the Limitation Act signifies a "Court" in strict sense. In Sakuru v. Tanaji AIR 1985 SC 1279, it is held that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeal or applications before bodies other than courts such as quasi-judicial Tribunals or executive authorities not withstanding the facts such bodies or authorities may be vested with certain specified powers conferred on courts under the Code of Civil Procedure. In Sukhdeo v. State of UP AIR 1992 All. 142 it was held that proceedings under section 28A of Land Acquisition Act before Collector are not proceedings in "Courts" and hence the provisions of section 5 of Limitation Act do not apply. Therefore the provisions of section 5 of the Limitation Act cannot be applied to the order passed by the Tribunal, a quasi-judicial authority.
11. Ld. AR of the assessee has placed reliance on several decisions referred to above in support of his contention that delay in filing of application for rectification dated 15-10-2006 should be condoned. We have gone through the ratios of the decisions referred by the ld. AR of the assessee carefully. It is not clear under what context these decisions were rendered. It is also not clear whether relevant statute under which the said decisions were rendered, contained provisions relating to limitation or were governed by the provisions of the Limitation Act, 1963. No such information has been provided in this regard by the ld. counsel of the assessee. Moreover as pointed out by the ld. Sr. D.R. that the ratio of a decision cannot be applied without reference to the context under which the same was rendered. We are inclined to agree with her in this regard. Hon'ble Supreme Court in the case of Sun Engineering Works (P.) Ltd. (supra) at page 320 observed as under:—
". . . . . It is neither desirable nor permissible to pick out a word or a sentence of the judgment of this court, divorced from the context of the question under consideration and treat it to be the complete "law" declared by this court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this court. A decision of this court takes its colour from the questions involved in the case in which it is rendered and, while applying the decision to a latter case, the courts must carefully try to ascertain the true principle laid down by the decision of this court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this court to support their reasoning. In Madhav Rao Jivaji Rao Sindhia Bahadur v. Union of India [1971] 3 SCR 9; AIR 1971 SC 530, this court cautioned (at page 578 of AIR 1971 SC);
'It is not proper to regard a word, a clause or a sentence occurring in a judgment of Supreme Court, divorced from its context, as containing a full exposition of law on a question when the question did not even fall to be answered in that judgment'."
The ld. AR of the assessee has not referred to the questions while citing the ratios of various decisions which were answered by the Hon'ble Courts. The ld. AR of the assessee has not also demonstrated as to how the decisions relied upon by him were relevant in the context of condonation of delay particularly when there is no provision under section 254(2) of the Act empowering the Tribunal to condone the delay.
12. We may also like to discuss the circumstances under which the decision in the case of Mst. Katiji (supra) relied upon by the assessee was rendered. In this case the appeal was preferred by the State of Jammu & Kashmir before the Hon'ble Jammu & Kashmir High Court. The appeal was dismissed rejecting an application for condonation of delay as time barred being four days beyond time. Hon'ble Supreme Court condoned the delay on the ground that when substantial justice and technical considerations were pitted against each other, the cause of substantial justice deserved to be preferred. Hon'ble Supreme Court condoned the delay and remitted the matter to the High Court to dispose of the appeal on merits. In this case section 5 of Limitation Act was held to be applicable as the matter related to the appeal before Hon'ble J&K High Court. The matter before us does not relate to an appeal where Tribunal is empowered to condone the delay under section 253(5) of the Act. Thus the decision in the case of Mst. Katiji (supra) relied upon by the assessee is not relevant to miscellaneous application seeking condonation of delay as this Tribunal has no power to condone the delay under section 254(2) of the Act. Other decisions relied upon by the ld. AR of the assessee referred to above are not relevant at all as the facts of the case and the context in which they have been rendered, are not known. Accordingly, in view of decision of the Hon'ble Supreme Court in the case of Sun Engg. Works (P.) Ltd. (supra) the ratios of various decisions cannot be applied to condone the delay.
13. Another contention of the ld. AR of the assessee that the present application for rectification has been filed immediately after the decision of the ITAT on second rectification application is not relevant. The period of four years has to be considered from the date of original order i.e., 17-9-1990 and not from the date on which second application for rectification was decided. Finality of a proceeding is an important feature to be observed while deciding the matter. Orders passed under section 254(1) are final subject to provisions of section 256 of the Act. Before omission of section 256 by the National Tax Tribunal Act, 2005, with effect from 28-12-2005, a reference on question of law was to be made by the Tribunal. In the instant case the reference application was rejected by the Tribunal vide order dated 14-4-1994. There is nothing on record to suggest that a reference application was made by the assessee before High Court under section 256(2) of the Act. Therefore, the order passed by the Tribunal on 17-9-1990 has become final. 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. We are unable to agree with the proposition made by the ld. AR of the assessee on simple ground that section 254(2) does not provide for any condonation of delay. If the contention of assessee is accepted it will open flood gates for litigation upsetting the settled principle of finality of assessment proceedings. The ld. AR of the assessee has also contended that the assessee cannot be made to suffer from the wrong committed by the Tribunal by deciding the rectification application after expiry of 14 years. We are unable to agree with the submissions made by him. No doubt the application for rectification was made by the assessee on 28-7-1992 within the period of four years. The rectification application has been decided by the Tribunal on merits vide order dated 24-2-2006 after discussing of all the four issues. Therefore, the assessee cannot have any grievance against delayed decision on Miscellaneous Application seeking rectification of mistake apparent from records. If the assessee was not satisfied with the outcome of miscellaneous application he could have gone to Hon'ble High Court seeking the remedy. Settled issues cannot be upset by moving rectification that too after expiry of period of 16 years.
14. Income-tax Appellate Tribunal, Ahmedabad Bench 'C' [Special Bench] (judgment rendered by five member Bench) in the case of Arvindbhai H. Shah ( supra) held that no rectification can be made after the period of four years on the principle of equity and justice or on the basis of theory that justice should be done. The time-limit of four years to make rectification under section 254(2) applies to both suo motu action of the Tribunal as well as to action taken on request of the parties. Since in this case the miscellaneous application seeking the rectification of order passed by the Tribunal under section 254(1) has been filed after the expiry of a period of sixteen years; and since there is no provision under the Income-tax Act and the provisions of section 5 of the Limitation Act are not applicable to proceedings before quasi-judicial authorities like ITAT, condonation of delay cannot be allowed. Therefore, the miscellaneous application filed by the assessee is dismissed as barred by limitation.
15. Since we have dismissed the application on the grounds of limitation, we do not feel it necessary to decide the rectification application on merits.
M.A. No. 110 (Delhi) of 2005
16. The assessee has also filed M.A. No. 110 (Delhi) of 2005 [filed on 20-4-2004 - Diary No. 1228, dated 21-4-2004] against order passed by the Tribunal in the case of Rahuljee & Co. Ltd. v. ACIT in ITA. No. 7074/Delhi/1992, dated 30-6-1999. ITAT, Delhi Bench 'C' New Delhi, in order dated 30-6-1999 upheld the penalty imposed under section 271(1)(c) on Rs. 2,17,110, the addition confirmed in quantum appeal. The assessee vide miscellaneous application dated 19-4-2004 filed on 20-4-2004 has requested to recall the order on the ground that certain evidences were not considered while deciding the appeal against confirming the penalty by the CIT (Appeals). The assessee has also filed an application dated 19-4-2004 on 20-4-2004 requesting the condonation of delay. Under section 254(2) the Appellate Tribunal is empowered to amend an order passed by it under section 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. In the instant case the application for rectification has been filed on 20-4-2004. The order confirming the penalty imposed under section 271(1)(c) of the Act was passed on 30-6-1999. The application for rectification of mistake apparent from record should have been filed by 30-6-2003. Since the miscellaneous application seeking rectification of the order dated 30-6-2003 was filed on 20-4-2004 which is beyond the prescribed period of four years from the date of order sought to be amended, the ld. AR of the assessee was requested to address the Bench on condonation of delay. The ld. AR of the assessee relied on the arguments and decisions referred to in Miscellaneous Application No. 558 (Delhi) of 2005. The ld. DR also relied on the arguments advanced by her in the said miscellaneous application.
17. We have heard both the parties. Since the miscellaneous application has been filed beyond the time prescribed under section 254(2) of the Act and we have discussed the issue relating to condonation of delay elaborately in assessee's Miscellaneous Application No. 558 (Delhi) of 2005 referred to above and have come to the conclusion that the condonation of delay cannot be allowed. This Miscellaneous Application is squarely covered by our order referred to above. Accordingly, the miscellaneous application filed by the assessee is dismissed, being barred by limitation. Since we have dismissed the application on the grounds of limitation, we do not feel it necessary to decide the rectification application on merits.
18. In the result, both the miscellaneous applications filed by the assessee are dismissed.
294/372