- (1.) THE Commissioner of Income-tax, Delhi-V, New Delhi, the petitioner, has invoked the jurisdiction of this court under Article 226 of the Constitution through this writ petition impugning the orders dated August 5, 1978, annexure P-1, and dated November 17, 1978, annexure P-2, passed by the Income-tax Appellate Tribunal, respondent No. 1.
(2.) THE petitioner by an application filed on Decembers, 1977, under Section 256 (1) of the Income-tax Act, 1961 (hereinafter called "the 1961 Act"), sought reference of four questions claiming the same to be questions of law arising out of the order dated February 28, 1977, of respondent No. 1 passed under Section 33 (4) of the Indian Income-tax Act, 1922 (hereinafter called "the 1922 Act"), in Income-tax Appeal No. 5436 of 1968-69 in respect of the assessment year 1946-47 pertaining to Satya Paul Virmani (Hindu undivided family), respondent No. 2, the assessee. Respondent No. 2 raised preliminary objections in writing seeking rejection of the reference application in limine on the following grounds : (i) That in respect of an order passed by respondent No. 1 under Section 33 (4) of the 1922 Act, a reference application could only be filed under Section 66 (1)of that Act and not under Section 256 (1) of the 1961 Act. (ii) That the date of service of the Tribunal's order dated February 28, 1977, on the petitioner as October 6, 1977, is not correct because the said order of respondent No. 1 was served on respondent No. 2 on March 9, 1977, and as such service of the same on the petitioner could not be as late as, mentioned in the reference application.
(3.) THE preliminary objection No. (ii) was styled by respondent No. 1 as presumptuous and it was found that the service of the order dated February 28, 1977, had been effected on the petitioner on October 6, 1977. Therefore, the reference application was within time. However, the first preliminary objection prevailed with respondent No. 1. Following a judgment of a Division Bench of this court in S. P. Jaiswal v. CIT [1969] 73 ITR 179, the Tribunal concluded that no reference application could be validly filed under Section 256 (1) of the 1961 Act in respect of an order of respondent No. 1 passed under Section 33 (4) of the 1922 Act. It was thus held that the reference application presented on December 5, 1977, being an invalid one was non est. The petitioner moved a miscellaneous application before respondent No. 1 for recalling the order, annexure P-1, by setting out various grounds but the same was also dismissed by respondent No. 1, vide order dated November 17, 1978, annexure P-2.;