HIGH COURT OF MADHYA PRADESH, INDORE BENCH
Ajit Kumar Pitaliya
v.
Income-tax Officer, Ujjain
AM Sapre and Manjusha P Namjoshi, JJ.
IT Appeal No. 179 of 2007
August 17, 2007
Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Appeals
to - Assessment year 1994-95 Whether application for rectification has to be
made by an aggrieved, party within four years from date of order passed by
authority concerned - Held, yes -Whether period of limitation can be affected
by taking plea of fraud - Held, no - Assessee filed application dated 24-7-2006
for rectification of order of Tribunal passed on 12-4-2002 - Whether since
assessee filed application after expiry of four year’s period, said application
was to be rejected as barred by limitation - Held, yes
The assessee filed an application under section 254 for rectification of order passed by the Tribunal. The Tribunal rejected the said application as being barred by limitation, i.e., four years.
On appeal :
The appeal did not involve any substantial question of law within the meaning of section 260A ibid as the view taken by the Tribunal was correct calling no interference in appellate jurisdiction. It is much more so when it was found that no substantial question of law by means of any error in law was noticed. [Para 5]
Section 254(2) provides limitation of 4 years for filing an application for rectification of order from the date of order sought to be rectified. This application has to be made by an aggrieved, party within four years from the date of the order passed by the authority concerned (as in the instant case by the Tribunal). It was not in dispute that in the instant case, the assessee did not file the application for rectification within four years from the date of order because admittedly the appellate order of the Tribunal was passed on 12-04-2002 whereas the application for rectification under section 254(2) was filed in the office on 24-07-2006. In order to enable the Tribunal to entertain such application for rectification, it was obligatory upon the assessee to have filed such an application on or before 12-04-2006. It was not done because the application was filed after the expiry of four years’ period, i.e. on 24-07-2006 (limitation expired on 12-04-2006). [Para 6]
Therefore, the Tribunal committed no mistake in rejecting the application made by assessee on the ground of limitation. In the absence of any provision for condonation of delay in filing such application, the Tribunal had no power to condone the delay. That apart, no such application was also filed by the assessee for condonation of delay and rightly so. In any case, when the Act has not made any provision for condonation of delay in filing such application akin to section 5 of the Limitation Act, nor any provision was brought to our notice making section 5 ibid applicable to such application, the Tribunal committed no error in dismissing the application once it came to a conclusion that it is filed beyond the period of four years as provided under section 254(2) ibid. Thus, the reasoning of the Tribunal was to be accepted and accordingly, the same was to be upheld calling no interference. [Para 7]
The contention of the assessee that in a case of fraud, no limitation as such was applicable and, hence, such application could be made at any point of time irrespective of limitation period prescribed could not be accepted. [Para 8]
In the first place, mere use of expression ‘fraud’ in the application does not take the case of assessee outside the purview of section 254(2) ibid. Secondly, whatever may be the ground pleaded for seeking rectification, the same has got to be brought to the notice of Tribunal within four years from the date of appellate order sought to be rectified for its consideration on merits. Thirdly, no such ground was ever taken by assessee at any point of time either before the Assessing Officer or before the Commissioner (Appeals) or before the Tribunal in any of the main proceedings arising out of main case on merits. Fourthly, assessee did not choose to prefer any regular appeal under section 260A against the appellate order of the Tribunal though he could have. It was for all these reasons the High Court could not entertain such argument which was pressed in service only for the sake of argument rather than of substance. [Para 9]
The assessee was shrewd enough to obtain surreptitiously some private official letter from the department written by one authority to other and was now trying to take its advantage for his personal benefits having lost the legal battle on legal points. The assessee was unable to satisfy when asked as to how and from where assessee could get photocopy of the official letter when the same was not addressed to assessee by the department. [Para 10]
Accordingly, in view of above, the appeal was found to be be devoid of any merit and, therefore, same was to be dismissed in limine. [Para 11]