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Commissioner of Income-tax Vs. Indian Motor Transport Co. (P.) Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petition No. 5279 of 1974
Judge
Reported in[1983]141ITR448(P& H)
ActsIncome Tax Act, 1961 - Sections 256 and 297(2)
AppellantCommissioner of Income-tax
RespondentIndian Motor Transport Co. (P.) Ltd. and anr.
Appellant Advocate Ashok Bhan and; Ajay Mittal, Advs.
Respondent Advocate S.S. Mahajan, Adv.
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........assessment year 1959-60, an application seeking a reference to the high court could be made by the addl. commissioner of income-tax? '2. the reference here was sought under section 256(1) of the i.t. act, 1961 (hereinafter referred to as 'the 1961 act'). the preliminary objection raised before the income-tax appellate tribunal and sustained by it was that the application in the instant case lay under section 66(1) of the indian i.t. act, 1922 (hereinafter referred to as 'the 1922 act'), and consequently the addl. commissioner was not the competent authority to file it. it is this order which was sought to be challenged here.3. there is no quarrel with the proposition that under the 1922 act, it was only the commissioner, who was competent to file the application seeking a reference to.....
Judgment:

S.S. Sodhi, J.

1. The short question which arises for determination here is 'whether in proceedings relating to the assessment year 1959-60, an application seeking a reference to the High Court could be made by the Addl. Commissioner of Income-tax? '

2. The reference here was sought under Section 256(1) of the I.T. Act, 1961 (hereinafter referred to as 'the 1961 Act'). The preliminary objection raised before the Income-tax Appellate Tribunal and sustained by it was that the application in the instant case lay under Section 66(1) of the Indian I.T. Act, 1922 (hereinafter referred to as 'the 1922 Act'), and consequently the Addl. Commissioner was not the competent authority to file it. It is this order which was sought to be challenged here.

3. There is no quarrel with the proposition that under the 1922 Act, it was only the Commissioner, who was competent to file the application seeking a reference to the High Court, whereas under the 1961 Act such an application can be filed by even the Addl. Commissioner.

4. It was the contention of the counsel for the petitioner that as the reference in this case had been sought after the coming into being of the 1961 Act, the reference made by the Addl. Commissioner must be treated to be valid as this was a matter relating to a procedure, in other words, the contention was that even in matters pertaining to pre-1961 assessments the procedure was to be governed by the 1961 Act, while the substantive law to be applied was that as contained in the 1922 Act.

5. There is a clear fallacy in the contention raised. Section 297(2)(c) of the 1961 Act clearly lays down that proceedings pending at the time of the commencement of the Act shall be continued and disposed of as if this Act had not been passed. When a reference is sought, as in the present case, it cannot but be construed as a continuation of the proceedings already pending in the case. There is thus no escape from the conclusion that the present case was covered by the provisions of the 1922 Act and it follows that the Addl. Commissioner was not competent to file an application seeking a reference and the impugned order was thus correct in law.

6. Counsel for the petitioner sought to rely upon National Agricultural Co-operative Marketing Federation Ltd. v. CBDT : [1972]84ITR376(Delhi) and Sterling Construction and Trading Co. v. ITO : [1976]102ITR47(KAR) for the proposition that in the matter of procedure the provisions of the Act of 1961 would apply and it was only with regard to the substantive provisions of law that the 1922 Act would continue to apply. The authorities cited do act warrant any such interpretation. National Agricultural Co-operative Marketing Federation's case : [1972]84ITR376(Delhi) dealt with only the provisions of the 1961 Act, whereas in Sterling Construction and Trading Co.'s case [1976] 1102 ITR 47 the case related to the return for the period subsequent to 1962. Neither of these authorities are thus of any relevance to the controversy raised here.

7. The impugned order of the Income-tax Appellate Tribunal (annex. P-3) is, accordingly upheld and affirmed. This writ petition is hereby dismissed. There will, however, be no order as to costs.


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