- (1.)THE original petition is one filed under s. 256(2) of the IT Act. The prayer is to direct the Tribunal, Cochin Bench to refer the question of law formulated in Ground B of the original petition for the decision of this Court. The O.P. is seen filed in this Court on 3rd Sept., 1992.
(2.)A petition under s. 256(2) of the IT Act should be filed within six months from the date on which the petitioner is served with notice of refusal to refer the question of law to this Court by the Tribunal under s. 256(1) of the IT Act. The order of the Tribunal passed under s. 256(1) of the Act is dt. 21st Feb., 1992. In the original petition it is stated that the order of the Tribunal was received by the assessee/petitioner on 5th March, 1992. On that basis, the petition under s. 256(2) of the Act could be filed on or before 5th Sept., 1992. As stated, the O.P. is seen to have been filed in this Court on 3rd Sept., 1992. Rule 191(2) of the Rules of the High Court of Kerala, 1971 requires that an application filed by an assessee under s. 256(2) of the Act shall be accompanied by a certificate from the Tribunal to the effect that the assessee has not withdrawn his application for reference under s. 256(1) of the Act before the said Tribunal. No such certificate was filed when the O.P. was filed in this Court on 3rd Sept., 1992. The original petition was returned for curing some defects, on 19th Oct., 1992. It was represented on 30th Oct., 1992 stating that the petitioner has taken steps for getting a certificate under r. 191 of the High Court rules. But, the same has not been received. Three months time was prayed for production of the certificate. C.M.P. No. 2532 of 1993 was filed to condone the delay in representing the petition after curing the defects. The certificate was not filed even within the period of three months. The matter was posted before the Bench.
On 2nd of March, 1993, a certificate from the Tribunal has been filed in this Court. It states that the Reference Application has not been withdrawn. It further states that the Tribunal's order was communicated to the assessee on 3rd March, 1992. The certificate also mentions that the application for a certificate was filed only on 25th Feb., 1993. An affidavit of the Chartered Accountant dt. 10th March, 1993 is filed. It is stated that the omission to file an application in time before the Tribunal to obtain the certificate, so that it could be filed alongwith the original petition was due to an oversight of the Manager and it was not wilful. It is difficult to accept the plea of mere "oversight"or "bona fide error"as stated in the affidavit dt. 10th March, 1993. It is evident that though the Tribunal communicated the rejection of the petition filed under s. 256(1) of the Act as early as 3rd March, 1992 and the assessee had time till 3rd Sept., 1992 to file a petition under s. 256(2) of the Act alongwith the certificate, the application to obtain the certificate was filed only on 25th Feb., 1993, nearly a year after the order under s. 256(1) of the Act was communicated.

(3.)UNDER r. 191(2) of the rules of the High Court of Kerala, 1971, it is mandatory that the application filed under s. 256(2) of the Act shall be accompanied by a certificate from the Tribunal to the effect that the assessee has withdrawn his application for reference under s. 256(1) of the Act. That is the very basis for filing an application under s. 256(2) of the Act. In so far as it has not been filed, we should say that O.P. (Ref.) No. 1466/93, though filed on 3rd Sept., 1992, can if at all be considered to have been filed in accordance with law only on 2nd March, 1993, on the day when the certificate from the Tribunal was filed in this Court. This is so adopting the liberal view laid down by the Supreme Court in CIT vs. Filmistan Ltd. (1961) 42 ITR 163 (SC). There is inordinate delay. It is for the petitioner/assessee to explain the said delay caused in the matter and seek appropriate relief, if he is so entitled to, in law.
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