Ramit Kochar ORDER
Ramit Kochar, Member (A)
1. This Miscellaneous Application (MA) is filed by assessee on 20.01.2017 seeking rectification of mistake, which as per assessee is apparent from record and has crept in the appellate order dated 02.02.2016 passed by Income Tax Appellate Tribunal, Allahabad, U.P. (hereinafter called "the tribunal") in ITA No. 280/Alld/2015 for assessment year(ay) 2008-09. This MA was heard through video conferencing mode through Virtual Court.
2. At the threshold, it was brought to our notice by ld. DR that this MA is barred by limitation as it is filed beyond the time provided u/s. 254(2) of the 1961 Act. It is brought to our notice by ld, DR that Section 254(2) of the 1961 Act was amended vide Finance Act, 2016 w.e.f. 01.06.2016 and the period now provided for rectifying the mistake apparent from record is reduced to six months from the end of the month in which the appellate order was passed by tribunal. It was submitted that prior to aforesaid amendment, the period provided was four years which was reduced to six months. It was submitted that the appellate order in ITA No. 2280/Alld/2015 was passed by tribunal, on 02.02.2016, while the MA application was filed on 20.01.2017, which is beyond six months from the end of the month in which appellate order dated 02.02.2016 was passed by tribunal, and hence this MA is not maintainable in the eyes of law being time barred as filed beyond limitation period as provided under the statute. It was submitted by ld. DR that Section 254(2) was amended wef 01.06.2016 and period of limitation was reduced to six months from four years and hence this is a change in procedures and hence new procedures will apply and thus, the new limitation period of six months will be applicable, and the assessee ought to have filed MA within the new limitation period of six months, but the assessee filed MA on 20.01.2017 which is clearly time barred and hence this MA is not maintainable.
2.1. The ld. Counsel for the assessee vehemently submitted that the appellate order in ITA no. 280/Alld/2015 for ay: 2008-09, was passed by tribunal on 02.02.2016, which is prior to amendment made by Finance Act, 2016 which is applicable from 01.06.2016, and hence in the instant case, old limitation period of four years will be applicable as the tribunal passed appellate order prior to amendment made by Finance Act, 2016 reducing limitation period to six months which is effective from 01.06.2016.
3. After hearing both the parties, we are of the considered view that Section 254(2) of the 1961 Act was amended by Finance Act, 2016 w.e.f. 01.06.2016 reducing limitation period for filing of MA for seeking rectification of mistake apparent from record in the tribunal order to six months from the end of month in which appellate order which is sought to be rectified was passed by tribunal. The earlier limitation for filing MA u/s. 254(2) was four years. This amendment is procedural in nature and it is well settled that the assessee does not have any vested right in procedure. It is also well settled that if the special statute provides for limitation, then the said special statute will govern the same and the limitation as is provided under the general statute governing limitation viz. The Limitation Act, 1963 shall not have applicability. It is also pertinent to mention that provisions of Section 253(5) of the 1961 Act vests powers with tribunal to condone delay in filing of appeals or memorandum of cross appeals beyond limitation period as provided u/s. 253(3) or 253(4) of the 1961 Act, provided sufficient cause is shown, but no such powers to condone delay are vested with tribunal while dealing with MA filed u/s. 254(2) of the 1961 Act seeking rectification of mistakes apparent from record in the appellate order passed by tribunal. The appellate order in ITA no. 280/Alld/2015 for ay: 2008-09 was passed by tribunal on 02.02.2016 and the limitation period for filing MA for seeking rectification of mistake apparent from record in the tribunal order was four years from the end of month in which appellate order which is sought to be rectified was passed by tribunal, but there was an amendment by Finance Act, 2016 effective from 01.06.2016, wherein the limitation period for filing MA for seeking rectification of mistake apparent from record in the tribunal order was reduced to six months from the end of month in which appellate order which is sought to be rectified was passed by tribunal. It is well settled that the assessee does not have vested rights in the procedure and no claim can be made that the assessee be governed by earlier un-amended provisions, unless the statute itself specifically provides for it. Thus, unless specified by statute itself, procedural law operates retrospectively. While making amendment to Section 254(2) by Finance Act, 2016 effective from 01.06.2016, we have observed that the statute has not provided for any saving clause in the amended provision and hence new period of limitation shall be applicable to the instant case. However, it is also trite law that if the amended provision provide too short period to make the working of provision nugatory, then reasonable period has to be provided. Reference is drawn to Hon'ble Supreme Court decision in the case of M P Steel Corporation v. CCE reported in MANU/SC/0484/2015 : (2015) 7 SCC 58 (SC); Hon'ble Supreme Court decision in the case of New India Insurance Company Limited v. Shanti Mishra MANU/SC/0547/1975 : (1975) 2 SCC 840(SC); Hon'ble Supreme Court decision in the case of Vinod Gurudas Raikar v. National Insurance Company Limited MANU/SC/0475/1991 : (1991) 4 SCC 333(SC), Hon'ble Supreme Court decision in the case of Thirumalai Chemicals Limited v. UOI MANU/SC/0427/2011 : (2011) 6 SCC 739(SC). The appellate order in the instant case was passed by tribunal on 02.02.2016. At that time limitation period u/s. 254(2) was four years, but by Finance Act, 2016 effective from 01.06.2016, the limitation period u/s. 254(2) was reduced to six months. Under the new amended provision, by strict application the period of limitation in the instant case will expire on 31.08.2016 but by reasonable interpretation, the limitation in the such cases where the unexpired period under the old law was more than six months on the date of amendment, then the limitation under the new provision shall be calculated six months from the date amended provision came into effect, and in those cases, where the unexpired period of limitation under the old law is less than six months as on the date of amendment, then the said unexpired period shall be allowed under the new amended provision effective from 01.06.2016. Thus, keeping in view factual matrix of the instant case, the MA ought to have been filed by assessee latest by 30.11.2016 viz. six months from the date new amended provision came into effect, as on the date of amendment on 01.06.2016, in the instant case, the unexpired limitation period under the old law was more than six month. The assessee has filed this MA on 20.01.2017 which is clearly time barred keeping in view amended provisions of Section 254(2), and hence this MA is not maintainable and is liable to be dismissed on the grounds of maintainability itself. Since, we have dismissed this MA on the grounds of maintainability itself, we are not adjudicating this MA on merits. We order accordingly.
4. In the result, M.A. Nos. 02/Alld/2017 arising out of ITA No. 280/Alld/2015 filed by assessee for ay: 2008-09 stand dismissed.
Order pronounced in the open Court on 18/08/2021 at Allahabad through video conferencing.
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