|CORAM:||D. Manmohan VP, S. Rifaur Rahman (AM)|
|CATCH WORDS:||limitation period, rectification of mistake|
|COUNSEL:||D. V. Anjaneyulu|
|DATE:||July 12, 2017 (Date of pronouncement)|
|DATE:||July 26, 2017 (Date of publication)|
|FILE:||Click here to download the file in pdf format|
|S. 254(2): The period of limitation for filing a rectification application is six months from the end of the month in which the “order is passed” and not from the date of “receipt of the order”. Even if a liberal view is taken, it can be considered as the date of uploading of the order on the ITAT website. The uploaded orders can be accessed by the assessee and constitutes service of the order upon the assessee|
(i) As per the present practice followed by the Tribunal, the order was pronounced on 21.06.2016 in the open court and the time limit, reckoned from the end of the month in which the order was passed, is six months for seeking recall i.e., parties are entitled to seek rectification of the said order within six months u/s 254(2) of the Income Tax Act, 1961, as amended w.e.f. 01.06.2016 which reads 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 rectify 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 as the Assessing Officer.”
(ii) Section 254(2) of the Act refers to the period of limitation reckoning from the end of the month in which the order Is passed’ and not from the ‘date of receipt of the order’. As rightly pointed out by the Ld DR, the expressions “passed” “initiated” and “served / received” are not interchangeable and the Legislature in its wisdom expressly used the phraseology depending on the intention. In the instant case, the expression “passed” cannot be stretched to mean that the period of limitation should be reckoned from the date of receipt of the order.
(iii) Even if a liberal view has to be taken, it can be considered as the date of uploading of the order. Ordinarily anything which is uploaded in the public domain can be accessed by the public at large and even the assessee would have access to the order and such a date always be treated as the service of the order. In the instant case, the noting of the Sr. Private Secretary in the book indicate that the order was uploaded on 21.06.2016, The judgment of the Hon’ble Madras High Court in S. P. Balasubrahmanyam (2017) 152 DTR 25, though referred to the latest provisions, cannot be taken aid of inasmuch as the Hon’ble High Court was dealing with the application filed in 2015, which is a date anterior to the introduction of six months limitation period. Even otherwise, the observations made therein cannot be equated to a finding or order since the court was not concerned with the latest provisions of the Act. Further, the Hon’ble High Court mentioned that “even taking for granted that the judgments of the Apex Court are applicable to the case on hand the date of service of the order was not even mentioned and the assessee has not applied due diligence and caution”; In other words, the Court concluded that the assessee has not followed due diligence. It was also referred that even the date of order is not placed on record. In such an event, we are afraid that we have no authority to interpret the expression “passed” as being akin to the ‘receipt of the order’. Since, the MA is filed beyond the period of limitation even reckoned from the date of uploading in website, we have no other alternative except to dismiss the application as being barred by limitation.
In Surya General Traders case the AP High Court opined that -When a person has a good case on merits, defeat of his claim on technical plea of limitation would ultimately lead to injustice.  133 STC 388
This MA decision is contrary to the jurisdictional High Court decision in the case of Rain Cements Ltd. v. DCIT  75 taxmann.com 113 (Andhra Pradesh and Telangana).