DIPAK KUMAR SEN, J. - (1.) THE CIT, West Bengal, the applicant, seeks a certificate that the judgment delivered on 3rd April, 1978, in IT Reference No. 101 of 1969 is a fit one for appeal to the Supreme Court inasmuch as substantial questions of law arise out of the judgment. Five questions of law have been suggested. If appears to us that only questions Nos. (iii), (iv) and (v) can be said to be of some substance and are required to be considered : "(iii) Whether the ITO could levy penalty in respect of the enhancement made by the AAC ? (iv) Where the AAC modifies the original assessment and deletes the addition under the head 'Income from undisclosed sources' and enhances the business income for undervaluation of stock, could it be said that the basis of the assessment had changed ? (v) If the original basis of initiation of proceedings is altered or modified by the appellate authority, whether the authority initiating the penalty proceedings has jurisdiction thereafter to proceed on the basis of the findings of the appellate authority ?"
(2.) BEFORE going to the merits, it is necessary to consider whether this application has been made out of time. From the record, it appears that the judgment was delivered on 3rd April, 1978. It is stated in the petition that the advocate on record of the applicant applied for a certified copy of the judgment and also of the order on 7th April, 1978. The certified copy of the judgment was received on 24th Aug., 1978. It is further stated in the application that the applicant has not received the certified copy of the order. It further appears from the records that the order dt. 3rd April, 1978, was drawn up, settled and filed on 30th Jan., 1979. The applicant did not take steps for the assessment of fees required to obtain the certified copy of the order and it was only when this application was being heard, that the applicant obtained the certified copy of the order. It was contended on behalf of the respondent that it was not necessary for the applicant to wait for the certified copy of the order because the appeal is from the judgment and a certified copy of the judgment was obtained by the applicant long ago. In any event, this application had been filed without the certified copy of the order. The applicant, it was submitted, had been guilty of negligence in not taking proper steps in time to obtain the certified copy of the order. In this connection, learned advocate for the respondent drew our attention to s. 66A(2) of the Indian IT Act, 1922, under which this application has been made: "Sec. 66A. (2) An appeal shall lie to the Supreme Court from any judgment of the High Court delivered on a reference made under s. 66 in any case which the High Court certifies to be a fit one for appeal to the supreme Court." Learned advocate also drew our attention to s. 67A of the Act of 1922 which reads as follows: "Sec. 67A. Computation of periods of limitation.--In computing the period of limitation prescribed for an appeal under this Act or for an application under s. 66, the day on which the order complained of was made, and the time requisite for obtaining a copy of such order, shall be excluded." Learned advocate submitted that this application was not an appeal under the Indian IT Act, 1922, nor was it an application under s. 66. Therefore, the respondent could not be heard to urge that the time requisite for obtaining a copy of the order should be excluded. Learned advocate for the applicant contended to the contrary. He cited a decision of this Court in CIT vs. Allahabad Bank Ltd. (1966) 62 ITR 476 (Cal) : TC56R.287, where a Division Bench of this Court considered and quoted observations from an unreported judgment of another Division Bench of this Court in Howrah Trading Co. Ltd. vs. CIT (IT Ref. No. 57 of 1953, dt. 28th April, 1955). The said observations are as follows : "It would seem that an appellant to the Supreme Court against the judgment delivered on a reference under s. 66(1) of the IT Act is entitled to both the time requisite for obtaining a copy of the judgement and the time requisite for obtaining a copy of the order. He is entitled to the former by virtue of the provisions of s. 66A(3) of the IT Act and he is entitled to the latter by virtue of the provisions of s. 67A." Learned advocate for the Revenue submitted further that the applicant had taken due steps for obtaining both the certified copy of the judgment and the certified copy of the order, and, therefore, was entitled to take advantage of the delay in obtaining the certified copy of the order. Learned advocate for the Revenue also cited other decisions in support of his contention that the time requisite for obtaining the certified copy of the judgment and order, as the case may be, is to be excluded in computing the period of limitation. It appears that the contention of the assessee that this application is out of time is not without substance. Reading s. 66A(2) with s. 67A of the Indian IT Act, 1922, it does not appear to us that the time required for obtaining a certified copy of the order can be excluded in computing the period of limitation. The Act of 1922 had prescribed its own period of limitation. Sec. 66A(3) on the basis of which the observation was made by the Division Bench in the unreported judgment noted hereinbefore reads as follows "Sec. 66A. (3) The provisions of the CPC, 1908 (5 of 1908), relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under this s. in like manner as they apply in the case of appeals from decrees of a High Court : Provided that nothing in this sub-s. shall be deemed to affect the provisions of sub-s. (5) or sub-s. (7) of s. 66 : Provided further that the High Court may, on a petition made for the execution of the order of the Supreme Court in respect of any costs awarded thereby, transmit the order for execution to any Court subordinate to the High Court." The said sub-s. (3) of s. 66A does not apply to applications to be made under s. 66A(2) but only relates to appeals.
(3.) HOWEVER, in view of the categoric observations of the earlier Division Bench in the unreported judgment, we are not inclined to take a different view inasmuch as the said decision is binding on us but we do not express any final opinion on the point and leave the matter to be considered, if necessary, in a future case by a larger Bench. We take note of the fact that by reason of the said observations of the Division Bench in the said unreported judgment, the applicant could well have been misled and waited for obtaining the certified copy of the order before making this application. To that extent, delay, if any, on the part of the applicant, is condoned. We would like to observe that the applicant has not taken diligent steps in the matter. When the certified copy of the judgment could be obtained on 24th Aug., 1978, there is no reason why the certified copy of the order could not be obtained till 1986. On merits, it appears to us that the judgment has followed the decisions of the Allahabad High Court in CIT vs. Shadiram Balmukand (1972) 84 ITR 183 (All) : TC49R.1197 and CIT vs. Dwarka Prasad Subhash Chandra (1974) 94 ITR 154 (All) and also the decision of theGujarat High Court in CIT vs. Lakdhir Lalji (1972) 85 ITR 77 (Guj) : TC50R.316. Learned advocate for the assessee also pointed out that the Supreme Court has already pronounced on the question in CIT vs. Angidi Chettiar (1962) 44 ITR 739 (SC) : TC49R.793. In the instant case, the assessment was modified by the AAC who included in the total income of the assessee amounts which were stated to be business income. The Supreme Court clearly laid down in the above case that the power to impose penalty depended upon the satisfaction of the ITO in the course of proceedings under the Act. In the instant case, the proceedings were not before the ITO but before the AAC.;