ORDER
1. This Special Bench was constituted Under Section 252(5) of the IT Act, 1961 to determine the scope of the Tribunal’s power to rectify a mistake beyond four years time limit as contained in Section 254(2) of the Act.
2. The relevant facts are that the appeal of the assessee in ITA No. 5972/Ahd/1991 was disposed of by Ahmedabad Bench “C” of ITAT by order dated 28-4-1997. The assessee on 11-4-2002 moved an application for rectification of the said order alleging certain mistakes apparent from record. This application is under Sub-section (2) of Section 254 of the Act.
3. As the application for rectification of order was made beyond four years of the order of Tribunal, it was directed to be fixed for hearing on the question of limitation before the Division Bench. When it came up before hearing before the Division Bench, the decision of Nagpur Bench of ITAT in the case of Bhillai Engineering Corporation (81 ITD 282) was cited and after some discussion, the counsel prayed for an adjournment and made a petition to the Hon’ble President, ITAT for constitution of a larger Bench. Hence the constitution of the present Special Bench.
4. The learned counsel Shri S N Soparkar submitted that Section 254(2) provides for two situations in which the Tribunal can rectify a mistake – (1) Suo moto and (2) on an application by either party. Placing reliance on the decision of the Nagpur Bench in the case of Bhillai Engineering Corporation (supra), he submitted that in the first situation which is discretionary, the time limit of four years is provided and for the second situation which is a mandatory exercise on mistake being brought to its notice by either party, no time limit is provided. He further submitted that section should be segregated and it should be read as, it stands. He referred to the decision of the Hon’ble Gujarat High Court in the case of ACIT v. Saurashtra Kutch Stock Exchange Ltd. 262-ITR-146 (Guj) at 153-154 for the two types of powers of Tribunal. He then referred to other analogous sections in the Act where the time limit is provided, viz. Section 154(7), 269N, and 269UJ and submitted that wherever Legislature wanted otherwise, a specific provision is made. He also referred to the provisions of Sections 275(1)(c) and 157BE(7) of the Act. he then referred to the provisions of section 35 of the Indian Income tax Act, 1922 wherein the words “within a like period” are used for the second situation which are not finding place in Section 254(2) of the present 1961 Act. Change in the language is not superfluous, he submitted and relied upon the decision in the case of State of MP and Anr. v. GS Dall and Flour Mills 187-ITR-478 (SC). He further submitted that power of rectification is to do justice which should be done at all costs. He then referred to the provisions in another Statute like Central Excise Act and Customs Act- Section 35(2), 129B and interest Tax Act- Section 17(1) dealing with rectification within a time limit prescribed.
5. Mr. Divatia as an intervener for M A No. 118/Ahd/2004 (Arising out of ITA No. 1589/Ahd/92 for AY 1990-91) in the case of Shri Mehmood Rahimbhai, supporting the contention that there is no time limit prescribed for making rectification application at the instance of the assessee or the revenue or passing order thereon by the Appellate Tribunal, contended in alternative, that the rectification application at the instance of the assessee or he revenue could be made within a reasonable time and that period should be considered from the date of receipt of the order of the Tribunal and not the date of the order. He further submitted that no fixed time limit can be provided for the exercise of said powers and in a given case, the applicant can apply after explaining the inordinate delay in making the application.
6. The learned DR Shri Sanjay Prasad, on the other hand, submitted that the provision for rectification is standing for last over four decades and no such controversy has ever been raised. The controversy has been where application has been filed within 4 years, can the Tribunal pass the order after 4 years from its order or it had to pass the order within 4 years. It shows that the matter of period of limitation to both the suo motu rectification and on a party’s request has settled and should not be a matter of litigation after such a long period. He referred to the decisions in cases of (i) 49 ITD 207 (Delhi) (Sompany Piglington Ltd. v. ITO) : (ii) 14 ITD 64 (Bombay) (ITO v. Homi Mehta & Sons): (iii) 2 ITD 491 (Cochin) (Sri Rama Verma v. ITO) : (iv) 31 ITD 286 (Delhi) (Somany Piglington v. ITO): (v) 21 ITD 164 (Nagpur) (IAC v. Ballarpur Industries Ltd.) : wherein it is held that the rectification may not be barred by limitation where the application for rectification is filed within four years time limit because it is the duty of the Tribunal to dispose of the application of the assessee filed within time and the rights of the party cannot lapse because of latches of the Appellate Tribunal. Contrary to the above, there are two decisions wherein it was held that no orders can be passed as the four year period had lapsed, viz. (i) 11 ITD 288 (Madras) (Dr. Sir Raja Mutthia Chettiar v. ITO) : (ii) 19 ITD 734 (Nagpur) (Rai Bahadur Shreeram Durgaprasad & Fatehchand Nagindas (Export Firms) v. ITO): The consistent view of the ITAT was that a proceeding in which the application Under Section 254(2) was filed beyond the period of four years it would not be maintainable as was held in Rai Bahadur Shri Ram Durgaprasad (supra).
7. He further submitted that the Nagpur Bench was swayed by the cause of justice on procedural aspects overlooking to the fact that the Law of Limitation is as much as part of jurisprudence and the justice machinery, as any other law. This, the Bench has itself noted in paragraph 3 of its order that “The requirement of justice is paramount factor. It is to be seen as to how best justice can be done. If the error is palpable, Tribunal in the interest of justice can proceed with the matter and set things right”. In that case, the MA was delayed by 19 days beyond limitation period and it was also pointed out by the counsel of the assessee that he was solely responsible for the delay and no part of the delay could be attributed to the assessee. The Bench has also noted that the issue under the MA was squarely covered by the decision of the Hon’ble Supreme Court in the reported in 239 ITR 775 (Mysore Minerals v. CIT). The Bench also observed that no one should be denied justice on the ground of procedural lapse. The observations are indeed honourable but what has to be seen, the ld. DR submitted, is that whether the Tribunal has the power to do the act after the lapse of four years and whether in the pursuit of justice to one party the whole fabric of judicial discipline can be thwarted.
8. The Nagpur Bench has extended the scope of the section which was not intended by the Legislature in as much as the Legislature has placed a ceiling of four years for such proceedings so as to ensure that the case may reach some finality. It had read certain words “on its own” in the Statute which do not appear, holding that the said words are implied. He relied upon the decision of the Hon’ble Supreme Court in the case of SP Gupta v. Union of India AIR 1982 SC 149 and contended that though obvious omissions can be made up by suitable interpretation, the Court otherwise cannot supply supposed deficiencies; for the Court then, instead of declaring the Law, would be making laws. The rule of Casus omissus states that the matter which should have been provided but has not been provided cannot be supplied by the Court. This view has been also taken by the Hon’ble Supreme Court in the case of Valliappan Textile 263 ITR 550. In Tarulata Sham v. CIT (108 ITR 345 it has also been held that it is not the job of the Court to make good the deficiency. The Hon’ble Bench has also given emphasis to the coma appearing after the word Tribunal in Section 254(2) which is not warranted as stated by Vepa P Sarthi in his book interpretation of Statutes Second Edition at page 265 that punctuation is not part of the Statute and in construing the Statute, the Court should firs read it without the punctuation. He further submitted that the fundamental principle of interpretation of Taxing Statutes is the principle of strict construction. Taxing statutes have to be interpreted differently from beneficial legislation (e.g. Labour Laws). Reference was drawn to the decision of the Supreme Court in the case of K M Sharma v. ITO reported in 254 ITR 772 (SC). The ITAT Nagpur Bench has thus extended the limitation period of proceedings Under Section 254(2) which does not have the sanction of Law.
9. We have heard the parties and considered the rival submissions. Section 254(2) giving rise to the controversy in the present case reads as under:
“The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying 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 the AO.”
10. On a plain reading of above sub-section, it is clear that the provision envisages two situations under which Appellate Tribunal is to rectify its order through amendment. The two situations clearly seen on anatomy of the sub-section are as under:
“The Appellate Tribunal;
(a) May, at any time within four years from the date of order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1); and
(b) Shall make such amendment if the mistake is brought to its notice by the assessee or the AO”.
11. The Appellate Tribunal is required to carry out activity of rectification through amendment of order Under Section 254(1) if besides limitation, the other condition of there being a mistake apparent from record is satisfied. In two situations (a) and (b) mentioned above, the activity of rectification is required to be carried within a period of four years. No order, after four years can be amended through rectification. The argument that no period of limitation is provided where order of amendment is passed in situation (b) above is erroneous and is based on misreading of clear statutory provision.
12. The word “May” in situation (a) gives discretion to the Appellate Tribunal to amend any order passed by it with a view to rectify any mistake apparent from record. It is clear from the statutory provision that the period of limitation conditioning the exercise of power are all given in the portion of the section taken as situation (a) above. These are not separately provided in situation (b). The use of word “shall” in situation (b) above makes it mandatory for the Appellate Tribunal to carry out the amendment. The discretion to exercise power in situation (a) is made mandatory and rectification is required to be made as a matter of “duty” in situation (b): However, the activity to be carried as “amendment” in situation (b) is the same. It is not a separate or different and this is made absolutely clear through employment of words “such amendment” and “if the mistake is brought to it’s notice”. Thus same (amendment) activity may be carried out by the Tribunal on its own motion as per situation (a) or as a matter of duty if the mistake is brought to its notice by the parties to the order. The period of limitation controls above activity. Condition of exercise of power including period of limitation are common in the two situations; one asking for discretionary action and the other making action compulsory i.e. as a matter of duty. The portion of sub-section covered by situation (b) is not independent of situation (a). The language of the statute is clear and unambiguous and is required to be given effect to.
13. In our opinion, therefore, there is no scope to argue that amendment required to be made when mistake is brought to the notice of the Appellate Tribunal can be me at any time and period of limitation of four years from the passing of order Under Section 254(1) of IT Act has no application. No amendment can be made beyond period of 4 years.
14. Nagpur Bench decision referred to in the application has opined that the time limit of four years applies to suo motu rectification by the Tribunal and when the rectification is done in accordance with the prayer of either of the parties, there is no time limit. It is a brief order is reproduced for the sake of convenience.
“3.–After Tribunal may, there is coma. Thereafter the words are at any time within four years. This setting of the section suggests that the words “at its own” are implied, therefore, the time limit of four years is in the context of suo motu rectification. Where rectification is to be done in accordance with the prayer made by either of the parties such time limit is not much relevant. The requirement of justice is the paramount factor. It is to be seen that how best justice could be done. If the error is palpable Tribunal, in the interest of justice can proceed with the matter and set the things right.
4. Coming to the next aspect we find that Shri Kapil S Bahri, counsel of the assessee vide his affidavit dated 7th November, 2001 stated in very clear and unequivocal terms that the delay in filing the application was attributable to him only. He explained the circumstances under which it could not be filed in time. It is clear from the said affidavit that assessee was not responsible for the delay. Delay due to mistake of the counsel constitutes a reasonable cause for filing the belated application. Taking into consideration the totality of facts, we are of the opinion that there existed a reasonable cause in filing the belated application. As such we condone the delay.
5. In arriving at this conclusion we have taken into consideration the legal pragmatism vis-a-vis the basic tenets of law. We are reminded of the dictum: Fiat Justitia rural et coelum (Justice should be done even if the heaven falls). The procedure should be the handmaid and not the mistress of legal justice. Cause of justice should not be subservient to the rules of procedure. We have gone through the file. The issue involved in the present case is prima facie appears to be covered by the decision of the Apex Court rendered in the case of Mysore Minerals Ltd. v. CIT (1999) 239 ITR 775 (SC). Under Article 141 of the Constitution of India, the decision pronounced by the Supreme Court is a binding precedent. The law is interpreted by the Apex Court is the law as it always has been. Denying the opportunity to the parties to argue the miscellaneous application on the jejune ground of processual lapse would tantamount to denying the justice. Not only that it will prolong litigation on a point which stands adjudicated by the decision of the Apex Court. It hath been well said declared Lord Coke: “Interest republica ut sit finis litum”. Translation loses terseness but what Lord Coke put in Latin tag conveys that the law suits be not protracted, otherwise great oppression might be done under the colour and pretence of law. We have considered the panoply of law on which the Tribunal based its decision. To be precise it was the concept of ownership. The concept has been redefined by the Apex Court. The Tribunal is bound to follow the law propounded by the Hon’ble Supreme Court. We therefore, for the palladium of justice condone the delay in filing the miscellaneous application and proceed to decide the issue on merits.”
15. On a careful reading of the above, it appears that the Nagpur Bench has taken into consideration four aspects of the matter- (1) that the use of the word “may” after the words “The Appellate Tribunal” indicate that the power to rectify at its own is implied; (2) that therefore the time limit of 4 years is for suo motu rectification and not when prayed for either of the party; (3) that the delay of the counsel in making application for rectification is a reasonable cause and the Tribunal can condone the same; and (4) that justice should be done even if the heaven falls and the cause of justice should not be much subservient to the rules of procedure.
16. As regards the first aspect that the Tribunal has power to rectify of its own, the contention of the Revenue is that the Tribunal has read something in the provision i.e. “of its own” which is not there in the Statute and therefore not warranted. We do not find any merit in this contention of the Revenue. In the case of ACT v. Vellappa Textiles Ltd. (supra), the assessee company and its Managing Directors were sought to be prosecuted Under Section 276-C, 277 and 278 of the IT Act, 1961. The prosecution was challenged by way of a petition under Section 482 of the Criminal Procedure Code on the ground that the sanction of the Commissioner Under Section 279 was vitiated inasmuch as no opportunity of being heard was given to them before the sanction was given, and that the company was incapable of being punished with a sentence of imprisonment which was mandatory Under Section 276-C and 277, the prosecution against the company was not maintainable. The Bench of the Supreme Court on the first issue held that “the grant of sanction is purely an administrative act and affording opportunity of hearing the accused is not contemplated at that stage”. By a majority decision, the Court also held that “if the Legislature has left a lacuna, it is not open to the court to add something to or read something in the statute on the basis of some supposed intendment of the statute. It is not the function of the Supreme Court to supply a casus omissus, if there be one. The job of plugging the loopholes must strictly be left to the Legislature and not assumed by the court. A court cannot breach a casus omissus and no canon of construction permits the court to supply a lacuna in a statute; nor can courts of law fill up the lacuna in all ill-drafted legislation. Whether the omission is intentional is no concern of the court. The duly of the court is to decide what the law is and apply it, not to make it. That however is not the case here. We are not reading something in the language used by the Statute. That power is amendable on a fair reading of the provision itself. Taking into consideration the decision of Gujarat High court in Saurashtra Kutch Stock Exchange (supra) the Tribunal could be said to have suo motu powers of rectification and the Nagpur Bench cannot be said to have read something in the section which is not there namely “of its own” as it is implied from the wordings used, i.e., “The Appellate Tribunal may”.
17. However its further observation as stated in the second aspect that “therefore, time limit of four years is in the context of suo motu rectification. Where rectification is to be done in accordance with prayer of either of the parties such limit is not much relevant” is not born out on a fair reading of the provision. We are not in a position to accept that view. Otherwise also, if the view of the Nagpur Bench is taken as correct, there will be flood gate of miscellaneous applications and the orders passed even by the First President of the Tribunal Mr. Justice Munir given in 1940 could be rectified today or in the years to come or for time immemorial on the application of either party. No order could ever be final if that view is upheld. Such a view can lead to chaos. This could never be the intention of the Legislature.
18. Reference is invited to the wordings of Section 35(1) of Indian Income Tax Act, 1922 dealing with rectification of mistake by CIT, AAC and AO, wherein a different phraseology is used on the basis of which it is contended that in absence of similar words “within like period” no time limit can be inferred for rectification on request of either party. This provision reads as under:-
“Section 35(1): The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal or, in the case of the Commissioner, in revision Under Section 33A and the ITO may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee.”
19. One may notice that this section even after the word “may” says “on his own motion” which power is thought to be implicit by the Nagpur Bench without the use of these words “on his own motion”. Further the period of four years has been provided separately for each authority, i.e. for the CIT/AAC at one place and the ITO at the other. The usage “on his own motion” and the usage “within the like period” when rectification is sought by assessee were all used as abundant caution or could be the way of drafting a legislation. The usage of words by way of abundant caution in 1922 Act and its absence in 1961 Act does not deter us to take a plain meaning of words used in Section 254(2) of the Act. In case we interpret Section 254(2) the way the ld.counsel wants us to read the power of suo motu rectification can also be not given to Appellate Tribunal because the words “on his own motion” also do not appear in Section 254(2) of the 1961 Acton under dispute as these were appearing in Section 35 of 1922 Act.
20. The other sections dealing with rectification in other Statutes are:-
(i) Section 35C(2) of Central Excise Act, 1944 is as under:-
“(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal.
(ii) Section 129B(2) of the Customs Act, 1962 reads as under:
“(2) The Appellate Tribunal may, at any time within four years form the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under Sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal.”
(iii) Section 17 of Interest Act, 1974 reads as under:-
“(1) With a view to rectifying any mistake apparent from the record, the Commissioner, the AO, the Commissioner (Appeals) and the Appellate Tribunal may, of his, or its, own motion or on an application by the assessee in this behalf amend any order passed by him or it in any proceeding under this Act within four years from the end of the financial year in which such order was passed.
(iii) Section 17 of Interest Act, 1974 reads as under:-
“(1) With a view to rectifying any mistake apparent from the record, the Commissioner, the AO, the Commissioner (Appeals) and the Appellate Tribunal may, of his, or its, own motion or on an application by the assessee in this behalf amend any order passed by him or it in any proceeding under this Act within four years from the end of the financial year in which such order was passed.”
In the legislative enactment of 1974, the period of our years to carry amendment of order passed is explicitly and clearly provided; leaving no scope for arguments, like the one advanced before us. Clarify and maturity of legislative draftsmanships evident in the subsequent enactment. Having regard to identical objects of provisions quoted above, we see no reason or logic nor any was advanced before us, why unlimited period to carry amendment could be allowed to parties to seek rectification before the Appellate Tribunal when limited period of four years is provided to other Tribunals and authorities. Above reference does not support the case of the applicants.
21. The provisions with time limit than for rectification referred to are:-
(i) Section 154(7)- Save as otherwise provided in Section 155 or Sub-section (4) of Section 186 no amendment under this section shall be made after the expiry of four years [from the end of the financial year in which the order sought to be amended was passed.]
(ii) Section 269N- With a view to rectifying any mistake apparent from the record, the competent authority may amend any order made by him under the Chapter at any time before the time for presenting an appeal against such order has expired, either on his own motion or on the mistake being brought to his notice by any person affected by the order:
(iii) Section 269UJ- With a view to rectifying any mistake apparent from the record, like appropriate authority may amend any order made by it under this Chapter, either on its own motion or on the mistake being brought to its notice by any person affected by the order:
Provided further that no amendment shall be made used this section after the expiry of six months from the end of the month in which the order sought to be amended was made.
(v) Section 275(1)- No order imposing a penalty under this Chapter shall be passed- (c) in any other case, after the expiry of the financial year in which the proceedings, in the course of which action for the imposition of penalty has been initiated, are completed, or six months from the end of the month in which action for imposition of penalty is initiated, whichever period expires later.
(vi) Section 158BE(2)- The period of limitation for completion of block assessment in the case of the other person referred to in Section 156BD shall be-
(a) one year from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assets requisitioned after the 30th day of June, 1995, but before the 1st day of January, 1997; and
(b) two years from the end of the month in which the notice under this Chapter was served on such other person in respect of search initiated or books of account or other documents or any assets are requisitioned on or after the 1st day of January, 1997.
22. These sections is no way help us in resolving the controversy; though these have a bearing on the issue that wherever the Legislature wanted to provide the period of limit to start, it is no provided specifically, viz., “after the expiry of four years from the end of the financial year in which the order sought to be amended was passed”. In Section 154(7); “at any time before the time for presenting an appeal against such order has expired”, in Section 269N; “no amendment shall be made under this section after the expiry of six months from the end of the month in which the order sought to be amended was made” in Section 269UJ; “after the expiry of the financial year in which the proceedings, –are completed, or six months from the end of the month—whichever period expires later” in Section 275(1)(c).
23. In the case of State of MP and Anr. G S Dall and Flour Mills (supra) the Supreme Court dealt with a situation where the exemption granted to a new Industrial Undertaking pursuant to the notification was under consideration. There were two successive notifications for granting the exemption. Under the first notification, “traditional industries” were excluded for the benefit whereas the second notification was silent about such exclusion. The State Government did not grant the exemption to “traditional industries” under the new notification because they were not entitled to exemption under the 1st notification. In that connection, the Supreme Court observed that “There are other difficulties in reading the provisions of the earlier schemes into the notification. In the first place, the earlier schemes specifically provided that “traditional industries” were outside their purview. The language of the notification, which is a piece of subsequent legislation, is silent about this. This is itself indicative of a legislative intent to widen the scope of relief and grant exemption to traditional industries as well: vide G P Singh: Interpretation of Statute, 4th edition, pp 767-768″. It also held that “Thirdly, the interpretation advocated by the State really narrows down the class of dealers entitled to the exemption as set down in column No. (1) of the notification. It amounts to substituting for the word “dealers” in column No. (1) of the notification, the words “dealers other than those carrying on traditional industries. Such an interpretation also virtually amounts to allowing certain executive instructions issued in a different context to cut down the scope of a statutory notification. This cannot clearly be done. As stated above, if the absence of words “within a like period” can be taken to be indicative of the legislative intention. If that be so, it has to be held that the omission of the words “on its own motion” would also dis-empower the Tribunal to have “suo moto” power of rectification which would be clearly contrary to the decision of the jurisdictional High Court in the case of Saurashtra Kutch Exchange Ltd. (supra). The absence of both terms in our opinion, are by way of abundant caution used while drafting the legislation at the earlier occasion.
24. In the case of Smt Tarulata and others (supra) Section 2(6A)(e) of the Indian Income tax Act, 1922 came for consideration which created a fiction for its applicability if at the time of payment of advance or loan to a share holder of a company, in which public are not substantially interested and tax is attracted on the loan or advance to the extent to which the company possess the accumulated profits, the moment the loan or advance is received. The loan in this case was repaid before the end of the year and a contention was raised that the fiction created by Section 2(6A)(e) would not be applicable. The Supreme Court held that “the language of Section 2(6A)(e) and 12(1B) s clear and unambiguous. There is no scope for importing into the statute words which are not there. Such importation would be not to construe, but to amend, the statute. Even if there be a casus omissus the defect can be remedied only by legislation and not by judicial interpretation. Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however, great the hardship may appear to the judicial mind to be.” The language of Section 254(2) of the Act, in our opinion, is clear and unambiguous and an order cannot be rectified after four years from the date of the order, be that in a proceedings taken suo motu by the Tribunal or pursuant to the request of either party.
25. In the case of K M Sharma (supra) the assessee received interest of Rs. 76,84,829 pursuant to the judgment of the District Magistrate dated 31-7-91 on compensation of the land acquired in December, 1967. The AO served notices Under Section 148 of the Act for 16 assessment years – 1968-69 to 1971-72 and 1981-82 to 1992-93 for bringing to tax the interest which had escaped assessment in those years. The assessee contended that the assessments had already become barred by limitation Under Section 149 as on 1-4-1989 for which the relevant period of limitation was four years or seven years depending upon the quantum of liability to tax There was an amendment in Section 150 lifting an embargo for period of limitation to enable the reopening the assessment not only on the basis of order passed in proceedings under the IT Act but also on the basis of an order of the court in any proceedings under any law. This provision was prospective and in that context the Supreme Court held that the amendment did not enable the authorities to reopen assessments which had become final due to the bar of limitation prior to April 1, 1989 and this position was equally applicable to reassessments proposed on the basis of orders passed under the IT Act or under any other law. The court held that the provisions of a fiscal statute, more particularly, one regulating the period of limitation, must receive a strict construction. The law of limitation is intended to give certainty and finality to legal proceedings and to avoid exposure to risk of litigation to litigants for an indefinite period on future unforeseen events. Proceedings which had attained finality under existing law due to bar of limitation cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to allow upsetting of proceedings which had already concluded and attained finality. In these circumstances, when a period of limitation of four years is provided Under Section 254(2) for rectifying an order, no rectification can be made after that period on the principle of equity and justice or on the basis of theory that justice should be done, even if heaven falls, as in our opinion, even period of limitation is part of the jurisprudence and cannot be brushed aside or ignored to grant relief on the prayer of the assessee or revenue after the expiry of said period of four years. Similarly, in the case of S P Gupta (supra) the Supreme Court held that obvious omission can be made up by suitable interpretation but the court cannot supply supposed deficiencies as in that case instead of declaring the Law, would be making laws.
26. In view of the above discussion we, therefore, hold that time limit of four years to make rectification applies both to suo motu action of the Appellate Tribunal as well as to action taken on request of the parties. The Miscellaneous Application of the assessee filed on 11-4-2002 for rectifying an order of the Tribunal dated 28-4-97 is barred by limitation and the Tribunal cannot make any rectification of its order on the prayer of the assessee as the time limit for four years from the date of the order has already expired. We do not find any merit in the application of the assessee. It has accordingly to be dismissed.
27. The Nagpur Bench, it seems, was influenced by the zeal of doing justice which they thought should be done even if heaven falls and by the fact that the delay in making application was on account of counsel of the assessee which was also thought fit to be condoned. This in our view was contrary to the verdict of the Supreme Court in Boota Mal v. UOI AIR 1962 SC 1716 rendered in the year in which the present provision came into effect, viz. though the fixation period of limitation may some time result in hardship but on that account there should be no resort to a consideration of equitable principles. Strict grammatical meaning of the words of the provisions appear to be the only safeguard. Maxwell in Interpretation of Statutes 17th Edition page 9 also says ‘it is the primary rule of interpretation of Statutes that where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. Interpretation of Statutes is not be collected from any notions which may be entertained by the Court as to what is just and expedient. Words are not to be construed as embracing or excluding cases merely because no good reasons appears why they should not be embraced or excluded and that “it has been repeatedly decided at law that the statutes of limitation which enacted such action should not be brought after the lapse of a certain period of time from the accrual of the cause of action barred actions brought after the time so limited, even though the cause of action was not discovered, nor was practically discoverable, by the injured party at the date of accrual, even though it was fraudulently concealed by the wrong doer until the expiry of the statutory period.
28. The provisions of limitation like any other provisions must receive a construction which the language on its plain meaning imports. The Supreme Court in the case of British India General Insurance Co. AIR 1959 SC 1371 held that the Courts can not add words to section unless the section as itself is meaningless or of doubtful meaning. Section 254(2) in our opinion is neither meaningless nor of a doubtful meaning.
29. Story in his Conflict of Laws, 8thEdition page 794 observed thus- “Statutes of limitation are statutes of repose, to quiet title, the suppress frauds and to supply the deficiency of proofs arising from the ambiguity and obscurity or the antiquity of transactions. They proceed on the presumption that claims are extinguished or ought to be held extinguished where they are not litigated within the prescribed period. They quicken diligence by making it in some measure equivalent to right. They discourage litigation by bringing in one common receptacle all the accumulations of past times which are unexplained and have now from lapse of time become inexplicable. It has been said by John Voet that controversies are limited to a fixed period of time, lest they should be immortal while men are mortal”. It is a trite law that a statute of limitation is a statute of repose, peace and justice.
30. The Privy Council in White v. Paruthe 1 Kanapp’s Privy Council Reports 179 enunciated the principle that if a person is insensible to the value of civil remedies and he is not alert enough to make his claim with promptitude, such a person should not be aided by the State in the enforcement of his claim. This is in keeping with the other Latin maxim Vigilantibus non dormientibus jura subsvenient. In the instant case it was further pointed out that statutes of limitation serve to ensure private justice, suppress fraud and perjury, quicken diligence and prevent oppression.
31. The object of providing limitation in a statute is to expect litigants to be diligent in seeking remedies in Courts of Law or from statutory authorities. It is to secure the quiet and repose of the community that litigation should not be in a state of constant uncertainty, doubt and suspense. “Interest reipublicae ut sit finis litium”. The interests of the State require that a period should be put to terminate all litigation. Yet another consideration is that a party who is insensible to the value of civil remedies and who does not assert his own claim with promptitude has little or no right to require the aid of the State in enforcing it. “Vigilantibus – non dormientibus jure subveniunt”. The law assists the vigilant not those who sleep over their rights. These principles are not mere technical rules of procedure but based on principles of public policy aiming at justice, the principles of repose and peace. Long dormant claims have often more of cruelty than of justice in them. We do not find ourselves in agreement of enlarging the scope of the principles of justice beyond limitation of time. It should be restricted to the claim made within statutory period as otherwise it may amount to cruelty than justice to violate the statutory period and attempting granting relief beyond statutory period itself would be contrary to rendering justice rather dong injustice.
32. The controversy raised by Mr Divitia that period of limitation should be counted from the service of the order when the rectification is sought for by the parties. We need not express our opinion on this issue and matter can be examined if the facts to the effect are existing in a particular case. In his intervener’s case the order of the Tribunal is dated 21-3-1997 and as per AD on record it was served on the assessee on 7-5-1997 and the application is made by the assessee on 2-12-2002 i.e. clearly beyond four years from the service also. The intervener has no case even on that account.
33. Mr Divitia’s other plea that where a Statute does not provide any time limit then an application within a reasonable time be admitted and rectification should be made, is also not convincing as the time limit of four years can well be said to be a reasonable time and allowing a period beyond four years would certainly be unreasonable if we take in view the trend of the various legislative intentions aforesaid providing for four years time limit for any rectification.
34. In the result, the Miscellaneous Application of the assessee is dismissed as the order of the Tribunal cannot be rectified after the end of four years from the date of the order sought to be rectified.