Shri Rakesh Pandey, Mirzapur vs. Income Tax Officer - (Income Tax Appellate Tribunal) (18 Aug 2021)

Unless specified by statute itself, procedural law operates retrospectively

MANU/IW/0052/2021

Direct Taxation

Present Miscellaneous Application(MA) is filed by assessee seeking rectification of mistake , which as per assessee is apparent from record and has crept in the appellate order passed by Income Tax Appellate Tribunal, Allahabad, U.P. ("Tribunal").

The assessee vehemently submitted that, the appellate order was passed by Tribunal on 2nd February, 2016, which is prior to amendment made by Finance Act, 2016 which is applicable from 1st June, 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 1st June, 2016 .

Section 254(2) of the 1961 Act was amended by Finance Act, 2016 w.e.f. 1st June, 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 under Section 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. 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 under Section 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 under Section 254(2) of the 1961 Act seeking rectification of mistakes apparent from record in the appellate order passed by tribunal.

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, 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.

In view factual matrix of the instant case, the MA ought to have been filed by assessee latest by 30th November, 2016. The assessee has filed the MA on 20th January, 2017 which is clearly time barred keeping in view amended provisions of Section 254(2), and hence, present MA is not maintainable and is liable to be dismissed on the grounds of maintainability itself.

Tags : MISCELLANEOUS APPLICATION   TIME PERIOD   MAINTAINABILITY  

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