R.N. Misra, J.
1. The petitioner, an assessee under the Income-tax Act of 1961, made an application to the Appellate Tribunal under the Act for making a reference to this court as provided under Section 256(1) thereof. The second appellate order was claimed to have been served on March 6, 1972, and since an application under Section 256(1) lies if filed within 60 days thereof, the application for reference filed on May 5, 1972, was claimed to be in time. The Tribunal found that the appellate order had been sent by registered post with acknowledgment due and the receipt furnished by the assessee showed the date of service of the appellate order as March 4, 1972. The assessee took the stand that an erroneous date had been put inadvertently and the actual date of service was March 6, 1972. In support of his stand he obtained a certificate from the Postmaster of the serving post office and filed it before the Tribunal. The Tribunal without instituting any further enquiry thought it appropriate to accept the date indicated in the acknowledgment due as the date of service. Since the Tribunal had not been asked to condone the delay by an application of the assessee on a finding that the application was belated by two days, the same was dismissed. This application for a certiorari is directed against the said order.
2. Mr. Mohanty for the assessee contends that when the assessee had taken a definite stand that the date put in the acknowledgment due was a mistake and produced a certificate from the Postmaster of the concerned post office to show that the registered letter was actually delivered on March 6, 1972, an enquiry was called for. The Appellate Tribunal acting as a quasi-judicial authority was duty bound to institute an enquiry to find out the truth and should not have pinned down the assessee to the date put by him in the acknowledgment due form, particularly when the assessee came forward to contend that it was a mistake. An opportunity to establish the mistake should have been given to the assessee.
3. The learned standing counsel contends that the decision of the Tribunal is over a dispute of fact. The Tribunal was called upon to find out the actual date of the service of the appellate order and there were two competing materials before it--the date appearing in the acknowledgment due form and the date shown in the certificate of the Postmaster. As between the two, the Tribunal preferred to accept the assessee's own document and did not choose to rely upon the Postmaster's certificate. According tothe learned standing counsel, the entire matter relates to appreciation of evidence with reference to documents. He relies upon a decision of the Supreme Court in Nagendra Nath Bora v. Commissioner of Hills Division, AIR 1958 SC 398 in support of his contention that the jurisdiction under Article 226 of the Constitution is not appellate or revisionul, and in a case of this type a certiorari is not available to be claimed or issued.
4. Admittedly, a dispute of fact was raised before the Tribunal. What, however, impresses us is the approach of the Tribunal to the matter. The assessee came forward with a positive stand that he had actually received the appellate order on March 6, 1972, but held by mistake put the date as March 4, 1972, in the acknowledgment due form. He had produced the requisite certificate from the Postmaster to show that the actual service had been made on March 6, 1972. It is common knowledge that authenticated postal records are available to show as to when registered letters are delivered. In the absence of evidence to the contrary the Postmaster's certificate cannot be ruled out as a concocted document. Judicial discretion vested in the Tribunal required that there should have been an enquiry to find out the truth. If ultimately the assessee's stand turns out to be false, certainly appropriate action against the assessee was called for. But before the assessee's stand could be levelled as erroneous, in our view an enquiry was warranted. Between two competing materials placed before the Tribunal each of which was available to be relied upon, unless the Tribunal indicated any justification to accept the one and reject the other, we think the better course was to receive further evidence by directing an enquiry. The jurisdiction that vested in the Tribunal to ascertain as to whether the application was within time or not has not been exercised and the summary rejection has resulted in injustice. An opportunity should have been afforded to the assessee to support his case and if he failed to do so the Tribunal should have taken appropriate action against the assessee for having come with a false plea. The application before us is supported by affidavit. A copy of this application shall be transmitted to the Tribunal and with reference to the assertion on affidavit that the assessee received the second appellate order on March 6, 1972, the Tribunal is called upon to institute an enquiry giving full opportunity to the assessee to establish his case that he actually received it on March 6, 1972. If the assessee fails to establish his case it would be open to the Tribunal to take appropriate action in law. The writ application is allowed. The order rejecting the reference us barred by limitation is vacated and the Tribunal is called upon to re-dispose of the matter keeping our directions above in view. There would be no order as to costs.
B.K. Ray, J.
5. I agree.