Can the Tribunal condone delay in a section 254(2) miscellaneous application, or extend the six months for an order passed before 1 June 2016?
On this Mumbai Tribunal view, no on both counts. The section as amended draws no distinction between orders passed before and after 1 June 2016, and the Tribunal has no power to condone delay in a miscellaneous application — unlike s.253(5), which gives it that power for an appeal. Applications filed beyond six months from the date of the order were dismissed as time barred.
Decided by the ITAT (Saktijit Dey, Judicial Member and Manoj Kumar Aggarwal, Accountant Member ('J' Bench, Mumbai)) on 2017-04-25, reported as M.A. Nos. 103 to 108/Mum/2017 arising out of ITA Nos. 8247, 8249, 8177, 8229, 8242 and 8228/Mum/2011 respectively, assessment year 2009-10 (ITAT Mumbai, 'J' Bench); indiankanoon captions the document 'Lavanya Land P. Ltd', which is the respondent in the last of the six applications. It bears on section 254(2), section 254(1), section 253(5), section 143(3), section 153C of the Income Tax Act 1961, in Appeals matters.
This is the line that bites hardest, and practitioners need it because it is what the Tribunal will put to them. Note who lost: it was the REVENUE's six miscellaneous applications that were dismissed, so the rule cuts both ways and can be used against a departmental application just as readily. It is also the order the Jharkhand High Court distinguished in Kamal Nayan Singh, on the ground that the application here was filed after the amendment whereas that one was filed before it — which is the distinction to run if your own application predates 1 June 2016.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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The Tribunal had passed a common order on 22 March 2013 disposing of appeals for assessment years 2007-08, 2008-09 and 2009-10 of several connected assessees. The Revenue filed six miscellaneous applications under s.254(2) on 28 February 2017 in respect of assessment year 2009-10, contending that the Tribunal had allowed grounds 1 and 2 of the assessees' appeals on the presumption that the assessment orders in all the years were passed under s.143(3) read with s.153C, whereas the assessment order for 2009-10 was passed under s.143(3) alone, so a mistake apparent from the record had crept in and the matter for 2009-10 needed fresh adjudication. Counsel for the assessees took a preliminary objection that the applications were time barred and that no power of condonation was provided by the statute. The applications were heard on 21 April 2017 and disposed of by a common order pronounced on 25 April 2017.
All six miscellaneous applications filed by the Revenue were dismissed as time barred (paras 4 and 5). The Tribunal held that the date of its order was 22 March 2013 and the applications were filed on 28 February 2017, clearly beyond the six months provided in s.254(2); that the section makes no distinction between orders passed before 1 June 2016 and orders passed after that date; that the statute does not authorise the Tribunal to entertain a s.254(2) petition filed beyond six months from the date of the order; and that while s.253(5) gives the Tribunal power to admit an appeal after the expiry of the relevant period on sufficient cause, no such power exists for a miscellaneous application, so condonation of delay was beyond its jurisdiction.
Taking the preliminary objection first because it went to admissibility, the Tribunal noted the dates and reproduced s.254(2), observing that the earlier period of four years had been substituted with six months by the Finance Act 2016 with effect from 1 June 2016, and that no distinction had been made in the section between orders passed before and after that date. It added that since the order was dated 22 March 2013 the Revenue had ample time to go through it and identify the mistakes and had failed to do so. Contrasting s.253(5), which expressly empowers the Tribunal to admit a late appeal on sufficient cause, it held that no comparable power exists for a miscellaneous application under s.254(2); being a creature of statute, its jurisdiction is simply to interpret and follow the statute, and there is no scope to import into the statute a word that is not there, since such importation would amount to amending it (para 4).
no distinction has been made in this section between orders passed before 01/06/2016 and orders passed after 01/06/2016.
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Handle my notice → Ask a CA on WhatsAppOn this Mumbai Tribunal view, no on both counts. The section as amended draws no distinction between orders passed before and after 1 June 2016, and the Tribunal has no power to condone delay in a miscellaneous application — unlike s.253(5), which gives it that power for an appeal. Applications filed beyond six months from the date of the order were dismissed as time barred. This was decided by the ITAT (Saktijit Dey, Judicial Member and Manoj Kumar Aggarwal, Accountant Member ('J' Bench, Mumbai)) and bears on section 254(2), section 254(1), section 253(5), section 143(3), section 153C of the Income Tax Act 1961. It is reported as M.A. Nos. 103 to 108/Mum/2017 arising out of ITA Nos. 8247, 8249, 8177, 8229, 8242 and 8228/Mum/2011 respectively, assessment year 2009-10 (ITAT Mumbai, 'J' Bench); indiankanoon captions the document 'Lavanya Land P. Ltd', which is the respondent in the last of the six applications. This is the line that bites hardest, and practitioners need it because it is what the Tribunal will put to them. Note who lost: it was the REVENUE's six miscellaneous applications that were dismissed, so the rule cuts both ways and can be used against a departmental application just as readily. It is also the order the Jharkhand High Court distinguished in Kamal Nayan Singh, on the ground that the application here was filed after the amendment whereas that one was filed before it — which is the distinction to run if your own application predates 1 June 2016. If it applies to you, the first step is this: Calculate the six months from the end of the month in which the Tribunal's order was passed, and treat that as a hard stop — the Tribunal here held it has no jurisdiction to condone even a day.
The Tribunal had passed a common order on 22 March 2013 disposing of appeals for assessment years 2007-08, 2008-09 and 2009-10 of several connected assessees. The Revenue filed six miscellaneous applications under s.254(2) on 28 February 2017 in respect of assessment year 2009-10, contending that the Tribunal had allowed grounds 1 and 2 of the assessees' appeals on the presumption that the assessment orders in all the years were passed under s.143(3) read with s.153C, whereas the assessment order for 2009-10 was passed under s.143(3) alone, so a mistake apparent from the record had crept in and the matter for 2009-10 needed fresh adjudication. Counsel for the assessees took a preliminary objection that the applications were time barred and that no power of condonation was provided by the statute. The applications were heard on 21 April 2017 and disposed of by a common order pronounced on 25 April 2017. The matter was decided on 2017-04-25 by the ITAT (Saktijit Dey, Judicial Member and Manoj Kumar Aggarwal, Accountant Member ('J' Bench, Mumbai)). On those facts the ITAT held as follows. All six miscellaneous applications filed by the Revenue were dismissed as time barred (paras 4 and 5). The Tribunal held that the date of its order was 22 March 2013 and the applications were filed on 28 February 2017, clearly beyond the six months provided in s.254(2); that the section makes no distinction between orders passed before 1 June 2016 and orders passed after that date; that the statute does not authorise the Tribunal to entertain a s.254(2) petition filed beyond six months from the date of the order; and that while s.253(5) gives the Tribunal power to admit an appeal after the expiry of the relevant period on sufficient cause, no such power exists for a miscellaneous application, so condonation of delay was beyond its jurisdiction.
Taking the preliminary objection first because it went to admissibility, the Tribunal noted the dates and reproduced s.254(2), observing that the earlier period of four years had been substituted with six months by the Finance Act 2016 with effect from 1 June 2016, and that no distinction had been made in the section between orders passed before and after that date. It added that since the order was dated 22 March 2013 the Revenue had ample time to go through it and identify the mistakes and had failed to do so. Contrasting s.253(5), which expressly empowers the Tribunal to admit a late appeal on sufficient cause, it held that no comparable power exists for a miscellaneous application under s.254(2); being a creature of statute, its jurisdiction is simply to interpret and follow the statute, and there is no scope to import into the statute a word that is not there, since such importation would amount to amending it (para 4). In the words reproduced by the source cited on this page: "no distinction has been made in this section between orders passed before 01/06/2016 and orders passed after 01/06/2016." The decision followed or applied Distinguished by the Jharkhand High Court in Kamal Nayan Singh v. DCIT, Tax Appeal No. 35 of 2020, decided 2 February 2023.
It was decided by the ITAT on 2017-04-25 and is reported as M.A. Nos. 103 to 108/Mum/2017 arising out of ITA Nos. 8247, 8249, 8177, 8229, 8242 and 8228/Mum/2011 respectively, assessment year 2009-10 (ITAT Mumbai, 'J' Bench); indiankanoon captions the document 'Lavanya Land P. Ltd', which is the respondent in the last of the six applications. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 254(2), section 254(1), section 253(5), section 143(3), section 153C, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. All six miscellaneous applications filed by the Revenue were dismissed as time barred (paras 4 and 5). The Tribunal held that the date of its order was 22 March 2013 and the applications were filed on 28 February 2017, clearly beyond the six months provided in s.254(2); that the section makes no distinction between orders passed before 1 June 2016 and orders passed after that date; that the statute does not authorise the Tribunal to entertain a s.254(2) petition filed beyond six months from the date of the order; and that while s.253(5) gives the Tribunal power to admit an appeal after the expiry of the relevant period on sufficient cause, no such power exists for a miscellaneous application, so condonation of delay was beyond its jurisdiction. It arises in Appeals matters, on section 254(2), section 254(1), section 253(5), section 143(3), section 153C of the Income Tax Act 1961, and was decided by Saktijit Dey, Judicial Member and Manoj Kumar Aggarwal, Accountant Member ('J' Bench, Mumbai). Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. If your application was filed before 1 June 2016, distinguish this order the way the Jharkhand High Court did in Kamal Nayan Singh: the filing date, not the hearing date, is what matters. If the six months has gone, stop trying to rectify and look at the alternatives — an appeal under s.260A against the Tribunal's order, or, where the order dismissed an appeal ex parte for non-appearance, an application under the proviso to Rule 24 of the ITAT Rules, for which Pradeep Kumar Jindal holds there is no limitation. When the Department files a late miscellaneous application against an order in your favour, take this order against it — the Tribunal noted the Revenue had ample time to identify the mistake and had failed to do so.
Validity check could not be completed. Validity check could not be completed; no general search for later treatment was made. What is known is that the Jharkhand High Court in Kamal Nayan Singh v. DCIT (2 February 2023) distinguished this order on the footing that the application there was filed before 1 June 2016, and criticised it as being in the teeth of the Gujarat High Court in Peterplast Synthetics (P.) Ltd. v. ACIT. The conflict is between a Tribunal bench and High Courts, so 'high courts differ' would be the wrong label. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
This order is short — five numbered paragraphs — but retrieval of para 4 was actively misleading. A first pass returned para 4 ending at the words 'as provided in Section 254(2)', which made the reasoning look bare; a phrase search on the same document returned the rest of the paragraph, which contains the entire reasoning including the sentence about no distinction between orders before and after 1 June 2016 and the s.253(5) comparison. The truncated version was retrieved twice and would have produced an entry that understated what the Tribunal decided. Both routes were re-run on the full paragraph and matched. The order also refers to 'the cited order' of the Mumbai Tribunal taking a similar view without naming it in the text available. Reported citations could not be verified; only the miscellaneous application numbers are given. On the cause title: indiankanoon captions this document 'DCIT v. Lavanya Land P. Ltd', but the cause-title block printed on the order runs the six applications in the order Hita Land Private Limited (M.A. 103), Ganraya Land (104), Arpit Land (105), Krutika Land (106), Krishna Land Realty (107) and Lavanya Land (108). The lead application is therefore against Hita Land Private Limited, which is exactly how the Jharkhand High Court cites this order at para 10 of Kamal Nayan Singh; the indiankanoon caption, not the High Court, is the outlier. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
All six miscellaneous applications filed by the Revenue were dismissed as time barred (paras 4 and 5). The Tribunal held that the date of its order was 22 March 2013 and the applications were filed on 28 February 2017, clearly beyond the six months provided in s.254(2); that the section makes no distinction between orders passed before 1 June 2016 and orders passed after that date; that the statute does not authorise the Tribunal to entertain a s.254(2) petition filed beyond six months from the date of the order; and that while s.253(5) gives the Tribunal power to admit an appeal after the expiry of the relevant period on sufficient cause, no such power exists for a miscellaneous application, so condonation of delay was beyond its jurisdiction.
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