Commissioner Of Income Tax vs New Everest Construction Co.
1991 Latest Caselaw 623 Del

Citation : 1991 Latest Caselaw 623 Del
Judgement Date : 27 September, 1991

Delhi High Court

Commissioner Of Income Tax vs New Everest Construction Co. on 27 September, 1991

Bench: B Kirpal, D Jain

JUDGMENT

By The Court

1. In this application it is stated that the order dt. 30th April, 1991 passed by this Court in ITC Nos. 55-58/90 should be reviewed.

2. There were four different applications under s. 256(2) which were listed before us. The said applications were not opposed and ex parte the same were allowed. It is now pointed out that the Tribunal and dismissed the applications under s. 256(1) on the ground that they were barred by time. Therefore, review of our order dt. 30th April, 1991 calling for a reference is sought.

3. The Department had filed four applications under s. 256(2). Two applications arose from RAs 664 and 665/87 which were dismissed by the Tribunal on the ground of delay. Two other applications, viz., ITC 57 and 58/90 were filed pursuant to the order of the Tribunal in RAs 161 and 162/87. These applications were not dismissed by the Tribunal on the ground of delay but were dismissed because the Tribunal had dismissed the other two applications of the Department on the ground that they were barred by time, which applications arose from the decision of the Tribunal in the assessed's appeals.

4. Only one application for review has been filed and that is in ITC 55/90. The ground taken in the application was not available to the applicant in respect of ITC 57 and 58/90 in any event. No application in respect of ITC 56/90 has been filed. As far as application in this case is concerned, viz., ITC 55/90, the contention raised by the applicant has to be accepted. It was not noticed that the present had dismissed the application under s. 256(2) arose from the order of the Tribunal who had dismissed the application under s. 256(1) as being time-barred. It is now well settled that when an application under s. 256(1) is dismissed as being time-barred, then an application under s. 256(2) is not available and the remedy which is open to the aggrieved person is to file a writ petition under Art. 256 of the Constitution, which remedy has been availed of in a number of other cases.

5. This review application is, therefore, accepted in so far as it pertains to ITC 55/90 and the order dt. 30th April, 1991 is recalled and the ITC 55/90 filed by the Department is dismissed.