|D. T. Garasia (JM), R. C. Sharma (AM)
|limitation period, rectification of mistake
|October 9, 2017 (Date of pronouncement)
|October 28, 2017 (Date of publication)
|Click here to download the file in pdf format
|S. 254(2) Limitation period: The amendment to s. 254(2) to curtail the limitation period for filing rectification applications to six months from four years is prospective and applicable to appeal orders passed after 01/06/2016 and not the orders passed prior to 01/06/2016. The contrary view in Lavanya Land (Mum ITAT) is not good law in view of K. Ravindranathan Nair (SC)
(i) We found that Tribunal in the case of Lavanya Land Private Limited vide order dated 25/04/2017 have held that since miscellaneous application was filed beyond a period of six months from the date of the order of the Tribunal which was sought to be rectified, the miscellaneous application was barred by limitation. We observe that while rendering the decision, the Co-ordinate Bench has not considered the decision of Hon’ble Supreme Court in the case of K. Ravindranathan Nair (Supra) where Hon’ble Supreme Court observed that right to appeal is vested in the litigant at the commencement of Lis and therefore, such vested right cannot be taken away and cannot be impaired or made more stringent by any subsequent legislation unless the subsequent legislation said so either expressly or by necessary intendment. An intention in interfere or impair a vested right cannot be presumed unless such intention be clearly manifested by the express words or by necessary implication.
(ii) Applying the proposition of law laid down by Hon’ble Supreme Court, we can safely infer that right to appeal which includes right to file rectification application arises at the time of passing the original order and such right can only be taken away when there is a retrospective amendment. In the instant case before us, the amendment so brought in u/s.254(2) was prospective and applicable to the orders passed after 01/06/2016, and not the orders passed prior to 01/06/2016. Undisputedly in the instant case the order of Tribunal sought to be rectified was dated 06/09/2013 which is much prior to the date of amendment. Accordingly amended provisions of Section 254(2) limiting the period of filing rectification application within a period of six months is not applicable to the instant case before us.
(iii) It is clear that the Co-ordinate Bench relied on by learned DR has not considered the decision of the Apex Court in the case of K. Raveendranathan Nair v/s. CIT (in Civil Appeal No. 3131 of 2006) holding that right to appeal being a substantive right gets crystalized at the time of passing of the original order unless the same is taken away by retrospective amendment. Respectfully following the proposition of law laid down by Hon’ble Supreme Court, we do not find any justification in declining the rectification application which was filed within the prescribed time limit prevailing prior to amendment brought in Section 254(2) of I.T. Act w.e.f. 01/06/2010.