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2001 DIGILAW 12 (ALL)

SHEO PRASAD VINOD KUMAR v. UNION OF INDIA

2001-01-04

BHAGWAN DIN, SUDHIR NARAIN

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SUDHIR NARAIN, J. ( 1 ) THE petitioner has sought to quash the order passed by respondent No. 1 dated October 29, 1987, rejecting the applications of the petitioner for making reference to this court under Section 256 (1) of the Income-tax Act, 1961. ( 2 ) BRIEFLY stated, the facts are that the petitioner-firm filed an income-tax return for the assessment year 1980-81. The Income-tax Officer concerned made certain additions on account of unexplained investment in purchase of sugar amounting to Rs. 49,500, The petitioner preferred an appeal against the said order. The Commissioner of Income-tax (Appeals), Agra, partly allowed the appeal. Against the aforesaid order, two appeals were filed before the income-tax Appellate Tribunal, Allahabad, respondent No. 2, one by the Income-tax Officer and the other by the petitioner. The Tribunal vide order dated March 31, 1987, dismissed the petitioners appeal but allowed the appeal filed by the Income-tax Officer. ( 3 ) THE petitioner filed two reference applications under Section 256 (1) of the Income-tax Act before respondent No. 2 for referring the question of law arising out of the Tribunals order to this court along with an application to condone the delay in filing the applications. Respondent no. 2 rejected the applications by means of the impugned order dated October 29, 1987, on the ground that the applications were filed beyond limitation. ( 4 ) THE sole question is whether the delay in filing the applications could have been condoned beyond the period under the proviso to Section 256 (1) of the Income-tax Act. Section 256 (1)provides that the assessee or the Commissioner may, within 60 days from the date upon which he is served with the notice of an order under Section 254, by an application in the prescribed form, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order (sic) within 120 days of the receipt of such application, provided that the Appellate tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period of not exceeding 30 days. ( 5 ) THE undisputed fact is that the reference applications were well within time up to July 31, 1987. The petitioner had filed applications for reference on August 3, 1987. ( 5 ) THE undisputed fact is that the reference applications were well within time up to July 31, 1987. The petitioner had filed applications for reference on August 3, 1987. The Tribunal under the proviso to Section 256 (1) could have condoned the delay only up to the period of 30 days. The applications were filed on August 3, 1987, i. e. , beyond 30 days. ( 6 ) WE have heard Sri R. R. Agrawal, learned counsel for the petitioner and Sri Shambhu Chopra, learned counsel for the respondents. ( 7 ) LEARNED counsel for the petitioner contended that August 1, 1987, and August 2, 1987, were holidays due to Saturday and Sunday and this period should have been excluded while counting the period of 30 days under the said proviso. He has referred to the provisions of section 4 of the limitation Act which provides that where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. The last day of filing the application under Section 256 (1) was July 31, 1987. This day was not a holiday, If July 31, 1987, had been a holiday, the petitioner would have been entitled to extension of time, as provided under Section 4 of the Limitation Act. ( 8 ) IN Vinod Gurudas Raikar v. National Insurance Co. Ltd. [1992] 75 Comp Cas 611 (SC), the proviso to Sub-section (3) of Section 166 of the Motor Vehicles Act, 1988, was considered which provided that the Claims Tribunal may entertain applications after the expiry of the said period of six months if it is satisfied that the applicant was prevented by sufficient cause from making the application in time within the next six months. The apex court held that the proviso further limits the period of condoning the delay as contained in the proviso. Similarly, the proviso to Sub-section (1) of Section 256 of the Income-tax Act, 1961, limits the power of the tribunal to condone the delay in filing the application only for thirty days. ( 9 ) LEARNED counsel for the petitioner contended that in view of Section 29 (2) of the Limitation act, this period could be extended by applying the provisions of Section 5 of the Limitation Act. ( 9 ) LEARNED counsel for the petitioner contended that in view of Section 29 (2) of the Limitation act, this period could be extended by applying the provisions of Section 5 of the Limitation Act. He has referred to the decision in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, AIR 1995 SC 2272 . In paragraph 10 of the judgment, their Lordships of the Supreme Court held that section 29 (2) of the Limitation Act will be applicable in respect of any provision of limitation in special law and that will override the provisions of the Limitation Act. It was observed (page 2277) : "it is, therefore, different from that prescribed in the former and thus Section 29 (2) would apply even to a case where a difference between the special law and the Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act. " ( 10 ) IN Prem Chand Bansal and Sons v. ITO [1999] 237 ITR 65 (Delhi), it was held that section 5 of the Limitation Act applies to the petition under Section 256 (2) of the Income-tax Act. In this case the court did not consider the proviso to Section 256 (1) of the Act. ( 11 ) LEARNED counsel for the petitioner has placed reliance on the decision in U. P. State Road transport Corporation v. ITAT [1986] 159 ITR 642 (All ). This court held that the time spent in obtaining certified copy of the order will be excluded in view of the provisions contained in section 12 of the Limitation Act. This case has no application to the facts of the present case. It is not the case of the petitioner that he had applied for copy of the order and that time should be excluded from counting the period of limitation. ( 12 ) IN Metro Exporters Ltd. v. CEGAT [1991] 51 ELT 316 (Cal), the court considering the proviso to Section 130 of the Customs Act, held that if the application is filed within extended period but the application to condone the delay is filed subsequently, the application for condonation of delay is not to be rejected. This case has no application to the facts of the present case. This case has no application to the facts of the present case. ( 13 ) AS the proviso limits the period within which the Tribunal has power to condone the delay, it has no jurisdiction to condone the delay after the expiry of the period provided in the said proviso. ( 14 ) IN view of the above, this writ petition is dismissed. .