Question And Answer
Subject: MISTAKE APPARENT FROM RECORD UNDER SECTION 254(2)
Category: 
Querist: Arvind Kumar
Answered by:
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Date: September 28, 2024
Query asked by Arvind Kumar

Tribunal recently on dated 26.06.2023 passed an exparte order on an appeal filed by the revenue and same order  was served around dated 30.07.2023 mentioning the point that on perusal of record we  find that department contention is correct ,whereas in contradiction to the same when we approached ITAT to check the file they refused on the pretext that same is missing ,disappointing by such act of ITAT we   procured the copies of documents of such appeal proceeding under RTI act 2005 ,initially even under RTI application  the documents of file was refused by ITAT by telling by ITAT that the file is missing at their end and information cannot be supplied but subsequently  on further appeal under RTI act ON DATED 20.7.2024  they supplied us the documents of appeal from which we came to know that revenue has sought adjournment by telling to bench in writing vide letter dated 6.6.23 on   hearing date 6.06.2023 when the order was kept reserved , that he did not get the paper book from the AO of this case hence he needs further adjournment but ITAT suo moto passed the order in absence of respondent and seeking adjournment by appellant i.e.,revenue  . MOREOVER REVENUE DID NOT FILE ANY OTHER DOCUMENTARY EVIDENCE OR WRITTEN STATEMENT EXCEPT THE SIX LINE OF GROUNDS OF APPEAL . IN FACT THERE WAS NO DOCUMENT ON RECORD FOR PERSUAL EXCEPT THE ORDER OF Ao AND ORDER OF CIT APPEAL . THE REAL FACT RELIED BY ITAT SUOMOTO ARE INCORRECT AND IN CONTRADICTION TO ASSESSMENT RECORDS. WHETHER IT IS THE CASE OF MISTAKE APPARENT FROM RECORD UNDER SECTION 254(2) .Whether the condonation of delay be allowed being the same is delayed beyond six month on the ground of natural justice that the mistake apparent came to our knowledge now only after getting the records under RTI act.

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Answer given by

In this case an application for rectification may be submitted along with condonation of delay application narrating all the facts, the tribunal will normally condone the delay. The wording in section 254(2) for limitation is “within six months from the date of receipt of order” therefore it is advisable to file appeal before the high court, along with application for condonation of delay, the High Court has wider powers to condone the delay. The 254(2)) application may result in to further litigation that will be more time consuming and expensive.



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