Director General Of Income Tax ... vs Board Of Industrial & Financial ...
2000 Latest Caselaw 761 Del

ORDER

Arijit Pasayat, CJ.

1. Heard the learned counsel for the parties.

Rule D.B. with the consent of the parties the writ petition is taken up for disposal:

2. The only point urged in the present application is that the Appellate Authority for Industrial and Financial Reconstruction (in short the "AAIFR") was not justified in holding that the petitioner's appeal was filed beyond the prescribed period of limitation. Learned counsel for contesting respondents submitted that AAIFR's conclusions are on terra firma. Therefore the only question that needs adjudication is whether the view of the AAIFR was correct.

3. For resolution of the controversy the factual position, which is almost undisputed needs to be noted in brief.

The Board of Industrial and Financial Reconstruction (in short the "BIFR") passed an order dated 3rd April 1997 in respect of a petition filed by GTC Industries Ltd. under the Sick Industrial Companies (Special Provisions) Act 1985 (in short the `Act'). Petitioner was not a party before the BIFR. It filed an appeal No. 10/99 on 19th November 1998. AAIFR held that while computing the period of limitation, prescribed under Section 25 of the Act the period from 29th April 1998 to 9th September 1998 has to be included. For coming to aforesaid conclusion AAIFR noted that respondent No.3/company who was the applicant before the BIFR had alongwith its letter dated 29th April 1998 enclosed a copy of the order passed by BIFR. Stand of petitioner was that on coming to know of order passed by BIFR, an inspection was made of the records on 20th August 1998, and an application for certified copy was filed on the same date. The certified copy was made available on 9th September 1998. Appeal was filed on 19th November 1998 and therefore period from 29th April 1998 to 9th September 1998 has no relevance. As indicated above, AAIFR came to the conclusion that the supply of copy of the order passed by BIFR to the Chairman of the Central Board of Direct Taxes constitutes a proper service and the starting point of limitation has to be from the date it was so supplied i.e. 29th April 1998. An application for review of the order was also not entertained and rejected.

4. Learned counsel for the petitioner submitted that conclusions of AAIFR about starting point of limitation are clearly untenable because of the clear language used in Section 25 of the Act. Learned ounsel appearing for the respondent No.3 submitted that after the order of the BIFR was passed follow up action has been taken. According to him, the date on which the Chairman of the Central Board of Direct Taxes received copy of the order should be construed to be the starting point of limitation.

5. In order to appreciate rival submissions Section 25 of the Act needs to be noted. Same reads as follows:-

"Appeal - (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority:

Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) On receipt of an appeal under sub-section (1), the Appellate Authority may, after giving an opportunity to the appellant to be heard, if he so desires, and after making such further inquiry as it deems fit, confirm, modify or set aside the order appealed against [or remand the matter to the Board for fresh consideration].

6. Appeal can be filed by any person aggrieved by an order of the Board made under the Act. Appellant need not necessarily be a person who was party before the BIFR. The appeal can be filed within forty-five days from the date on which a copy of the order is issued to him. On sufficient cause being shown it can be extended up to sixty days, in terms of first proviso to the Section. Obviously the issuance of the order is an act to be done by the Board. It would be also relevant to take note of the provisions contained in Regulation 15 of the Board of Industrial and Financial Reconstruction Regulations 1987 (in short the "Regulation"). The said provisions reads as follows :

"Authentication and communication of orders of the Board-

(1) All orders and decisions of the Board shall be authenticated by the signature of the Chairman or any other member, or the Secretary, or any other officer empowered in this behalf by the Chairman, and bear the official seal of the Board.

(2) Every order of the Board shall be communicated under the signature of the Secretary or any other officer of the Board duly empowered by Secretary, in this behalf."

The requirements of Regulation 15 are: (a) that the order of the B.I.F.R. shall be communicated; (b) the communication has to be under the signature of the Secretary or any other officer of the Board duly empowered by the Secretary in this behalf. Obviously the order has to be issued by the Board and the manner in which it is to be authenticated is laid down in clause (2) of Regulation 15. Learned counsel for respondent No. 3 submitted that word used is "issued" and not "served" and the person who shall issue is not specifically provided and knowledge from any source other than B.I.F.R. would suffice. We do not find any substance in said stand Scheme of the Statute makes it clear that issuance of the order is an act to be undertaken by B.I.F.R. For the purpose of computation of period of limitation, date of service has to be the effective date. Otherwise a person would be rendered remediless if the order is served after forty-five days or sixty days as the case may be from the date of issue. "To issue" means to send out, to send out officially, to send forth; to deliver, to put into circulation; to exit, to go out. The expressions "issued" and "served" are used as interchangeable terms both in dictionaries and various statutes. The dictionary meaning of the word "issue" is "the act of sending out, put into circulation, deliver with authority or delivery "(See: Banarasi Debi Vs. Income-tax Officer, ). In Commissioner of Wealth-tax Vs. Kundan Lal Behari Lal, , in the context of Section 18(2-A) of Wealth-tax Act, 1957 it was held that "issued" means "served" In the instant case the order was not issued to the petitioner on the ground that it was not a party to the proceeding before it. But when the certified copy was obtained, obviously that is the starting point when the order can be said to have been issued by the B.I.F.R. to the petitioner. Therefore the starting point has to be the date on which the certified copy was handed over i.e. 9th September, 1998. If that is to be taken to be the starting point, appeal is within permissible extended time limit. The view of the AAIFR that appeal was barred by limitation is not correct.

7. Accordingly, we remit the matter back to the AAIFR to consider the question of admitting the appeal on condensation of delay, and pass appropriate orders. We make it clear that we have not expressed any opinion on the merits of the case. It is open to the respondent(s) to press the stand before the AAIFR, so far as the merits are concerned, as well as the question of condensation of delay. It is open to the parties to place such materials as are considered relevant by them for the purpose of adjudication of the dispute by the AAIFR.

Writ application is allowed to the extent indicated above.