Decided on February 18,1994



M.A. Bakhshi, Judicial Member - (1.) THE appeals of the assessee for assessment years 1984-85 and 1985-86 were disposed of by a consolidated order dated 28th February, 1992. Reference applications under Section 256(1) were filed by the CIT, Delhi-VII, New Delhi. THE said reference applications were notified by the Registry as barred by limitation. Accordingly opportunity was given to the applicant for explaining the delay. THE applicant did not file any explanation for the delay nor was any application filed for condo nation of delay. Reference applications were accordingly rejected as barred by limitation.
(2.) The revenue has filed application requesting for recalling the order dated 20th October, 1992 on the ground that the reference applications filed by the revenue were not barred by limitation as the order of the Tribunal had been served on the Chief Commissioner of Income-tax who had forwarded the same to the concerned Commissioner of Income-tax. Whereas the date of service of the order upon the Chief Commissioner of Income-tax was 26th March, 1992 the date of service upon the concerned Commissioner of Income-tax was 20th April, 1992. Reference has been made to the decision of the Delhi High Court in the case of J.K. Synthetics Ltd. [CPW No. 78 of 1991 dated 22-3-1991] in support of the contention that the limitation for filing of reference application starts from the date of the service of the order upon the Commissioner of Income-tax and not from the service of the order upon the Chief Commissioner of Income-tax. The learned counsel for the assessee - Shri Anoop Sharma contended that the application filed by the revenue is not in order. According to Shri Sharma the application under Section 254(2) can be filed against orders passed under Section 254. Since the order passed by the Tribunal was not an order under Section 254 the application of the revenue cannot be considered to be an application under Section 254(2).
(3.) SHRI Sharma further contended that the order of the Tribunal Is not an order passed under Section 256(1) as reference application has not been decided on merits. On the other hand the application has been considered to be not maintainable. Reliance was placed on the decision of Punjab and Haryana High Court in the case of S.P. Jaiswal v. CIT[1969] 73 ITR 179, in support of the contention that where reference application is dismissed as not maintainable reference under Section 256(2) does not lie. According to SHRI Sharma the only remedy available to the revenue is by way of Writ Petition for seeking directions from the Hon'ble High Court. Accordingly it was urged that the application filed by the revenue may be dismissed.;

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