Commissioner Of Income Tax vs Hindustan Times Ltd. & Anr.
1992 Latest Caselaw 577 Del

JUDGMENT

GOKAL CHAND MITAL, C.J. :

The applications filed by the writ petitioners under s. 256(1) of the IT Act, 1961 (hereinafter referred to as the Act) have been dismissed by the Tribunal as being time barred on the ground that the Chief CIT was served with a decision of the Tribunal made under s. 254 of the Act and the date of service on the Chief Commissioner would govern the limitation for filing of the application under s. 256(1) of the Act. This decision of the Tribunal is being impugned in these writ petitions.

2. As a common question of law arises all these writ petitions are being disposed of by this common judgment.

3. The point which arises for consideration is covered by two decisions of this Court in CIT vs. Arvind Construction Co. Pvt. Ltd. (1992) 193 ITR 330 (Del) and J. K. Synthetics Ltd. vs. ITAT (1992) 193 ITR 333 (Del). Since the learned counsel for respondent No. 2 insisted that the matter requires further consideration, particularly in view of the observations made by the Supreme Court while upholding one of the decisions of this Court that the point seems to be feasible one and may be considered in some appropriate case, the matter should be considered more deeply now.

4. We have considered the matter more deeply and on a consideration of the matter we are of the view that earlier two decisions of this Court are correct. The limitation for filing reference applications is provided under s. 256(1) of the Act and the precondition to file such an application is to file such an application within 60 days of the date by which the assessed or the Commissioner is served with a notice of an order under s. 254 of the Act. Prior to 1st April, 1988 s. 254(3) reads as follows :

"The Tribunal shall send a copy of any orders passed under this section to the assessed and to the Commissioner."

5. By the Direct Tax Laws (Amendment) Act, 1987, which came into force w.e.f. 1st April, 1988, in the aforesaid provision before Commissioner "Chief Commissioner or" words were added meaning thereby the Tribunal could serve their orders passed under s. 254 besides assessed on the Chief Commissioner or Commissioner. Sec. 254(3) provides a mode of service of order passed by the Tribunal. When it was found that the service of the orders on Commissioner or under s. 256(1), by amendment made in Finance (No. 2) Act, 1991, which came into force w.e.f. 27th September, 1991, the words "Chief Commissioner" were deleted. With the result s. 256(3) remained as it was before 1st April, 1988. For seeing limitation we have not to go to s. 254(3) but only to s. 256(1) wherein the limitation will start from the service of the notice of an order under s. 254 on the assessed or the Commissioner. Even if the amendment had not been made by the Finance (No. 2) Act, 1991 yet in a case where the order had been served on the Chief Commissioner, the limitation will not start in case the reference application had to be filed by a Commissioner until that Commissioner was served with the copy of the order. This is the crux of the matter for our consideration because here we are concerned with the point of limitation for filing the reference application under s. 256 of the Act.

While agreeing with the reasons given in earlier two decisions of this Court, we are of the opinion that the reference applications filed by the writ petitioners before the Tribunal were within time as admittedly having been filed within 60 days of service of order passed under s. 254 of the Act on the Commissioner.

Accordingly, all the writ petitions are allowed and the orders of the Tribunal are quashed and the Tribunal is directed to decide the reference applications after affording an opportunity to the parties in accordance with law.