| Question And Answer | |
|---|---|
| Subject: | Whether ITAT has power to condone delay in filling MA. U/Sec 254(2) |
| Category: | Income-Tax |
| Querist: | Prakash |
| Answered by: | KSA Legal Chambers |
| Tags: | condonation of delay, ITAT, Miscellaneous application |
| Date: | February 17, 2024 |
1. Whether Tribunal has power to condone the delay in filling an MA U/sec 254(2) of the Act
2. whether date of passing order of Tribunal or date of receipt of order is to be consider for calculating period of six month U/Sec 254(2)
3. whether Supreem court decision passed later on the issue can be ground to file MA, against ITAT order which has allowed appeal by relying then order of jurisdictional HC available at that time.
pl guide
The ITAT has no power to condone the delay in filing the miscellaneous application. Refer , Malwinder Singh v.UOI (2005) 278 ITR 568 (P&H)(HC) . For calculating the period of six months the date of receipt of the order to be considered . Refer , Anil Kumar Nevatia v. ITO (2021)434 ITR 261/ 203 DTR 92/ 278 Taxman 235 / 321 CTR 368 (Cal) (HC), Pawn Kumar Jian v.DCIT (2013) 155 ITJ 14 ( Mum))( Trib) .
Based on the order of the Supreme Court judgement rectification order can be passed . As per Article 141 of the Constitution the order of Supreme Court is binding . In ACIT v. Saurashtra Kutch Stock Exchange Ltd (2008) 305 ITR 227 (SC) the Court held that a judicial decision acts retrospectively. The judges do not make law, they only discover or find the correct law. The law has always been the same and if a subsequent decision alters the earlier one, the later decision does not make a new law. It only discovers the correct principle of law which has to be applied retrospectively. The Supreme Court held that even an earlier decision of the court operated for quite sometime, the decision rendered later on would have retrospective effect, clarifying the legal position which was earlier not correctly understood. Refer Circular No. 68 dt 17 -11-1971 (1972) 83 ITR 6 (St) , wherein the CBDT clarified that the based on the judgement of Supreme Court , rectification order can be passed.