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Rasipuram Union Motor Service Vs. Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation;Limitation
CourtChennai High Court
Decided On
Reported in(1956)2MLJ604
AppellantRasipuram Union Motor Service
RespondentCommissioner of Income-tax
Cases ReferredMuralidhar v. Motilal
Excerpt:
.....and the time requisite for obtaining a copy of such order shall be excluded. even the so-called certified copy which the assessee must have obtained in these cases and furnished with the memorandum of appeal nowhere seems different from the copy served on the assessee on 25th november, 1950. we fail to appreciate the force of this observation. the copy delivered to the assessee on 13th february, 1951, on the application he made for the issue of that copy -whether 29th november, 1950 or 3rd january, 1951 was the real date of the application would be immaterial -was a certified copy which satisfied the requirements of section 76 of the evidence act. 16. the learned counsel for the assessee contended that, even if the copy of that order served upon the assessee on 25th november, 1950,..........be validly presented to the tribunal, the assessee has to produce along with the memorandum of appeal certified copy of the order of the appellate assistant commissioner against which the assessee preferred the appeal. we are, therefore, unable to accept as correct the finding of the tribunal, that a certified copy of the order of the appellate assistant commissioner is certainly not a desideratum for filing an appeal to the appellate tribunal.10. the tribunal was of the view, that the copy of the order served upon the assessee on 25th november, 1950, was itself a certified copy. the tribunal pointed out:.even the so-called certified copy which the assessee must have obtained in these cases and furnished with the memorandum of appeal nowhere seems different from the copy served on.....
Judgment:

Rajagopalan, J.

1. The question referred to this Court under Section 66(1) of the Income-tax Act ran:

Whether the appeals for assessment years 1946-47 to 1949-50 were presented within the prescribed time to the Tribunal.

2. The facts were not in dispute. The appellate Assistant Commissioner disposed of the appeals preferred by the assessee with reference to the assessment years in question. The orders of the Appellate Assistant Commissioner were dated 5th November 1950 and a copy of that order was communicated to the assessee on 25th November, 1950. It was certified by the Assistant Commissioner to be a true copy of his order. On 29th November, 1950, the assessee applied to the Assistant Commissioner for a certified copy of the order, dated 5th November, 1950, and he also applied for the issue of the forms for preferring an appeal to the Tribunal against the order of the Appellate Assistant Commissioner, dated 5th November, 1950. Simultaneously the assessee applied to the Income-tax Officer for the issue of a chalan for the payment of the prescribed fee of Rs. 100. It was on 13th February, 1951, that the assessee received the certified copy he had applied for on 29th November, 1950. The endorsement on that certified copy showed that the application for the certified copy had been made on 3rd January, 1951, that the prescribed charges were deposited on 9th January, 1951, and that the certified copy was ready on 6th February, 1951, but that it was actually delivered to the assessee on 13th February, 1951. The assessee, it should be remembered, applied for a certified copy on 29th November, 1950. It was a further communication from him, dated 3rd January, 1951, that was treated as the regular application for the issue of a certified copy. That explains the date 3rd January, 1951, in the endorsement on the certified copy issued to the assessee. That certified copy bore the seal of the Appellate Assistant Commissioner.

3. On 23rd February, 1951, the assessee preferred his appeal to the Tribunal, and the memorandum of appeal was accompanied by the certified copy of the order of the Appellate Assistant Commissioner which was delivered to the assessee on 13th February, 1951.

4. Before the Appellate Tribunal the assessee contended that the appeal had been presented in time. That claim was based upon Section 67-A of the Act, and upon Rule 10(1) of the Appellate Tribunal Rules. Alternatively the assessee contended that, if there was any delay in the presentation of the appeal, it was a fit case where the delay should be condoned. Both the contentions were rejected by the Appellate Tribunal.

5. The contention of the assessee that the presentation of the memorandum of appeal to the Tribunal on 23rd February, 1951, was within the time allowed by law, is the first question which we shall discuss.

6. Section 33(1) provides:

Any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within 60 days of the date on which the said order is communicated to him.

7. Section 67-A of the Act runs:

In computing the period of limitation prescribed for an appeal under this Act or for an application under Section 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.

8. Section 33(3) directs:

An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and...shall be accompanied by a fee of Rs. 100.

The prescribed form itself does not refer to a certified copy of the order appealed against, but Rule 10(1) of the Appellate Tribunal Rules, 1946, prescribes:

Every memo andum of appeal shall be in triplicate and shall be accompanied by two copies at least one of which shall be a certified copy of the order appealed against and two copies of the order of the Income-tax Officer.

9. It is thus clear that before a memorandum of appeal could be validly presented to the Tribunal, the assessee has to produce along with the memorandum of appeal certified copy of the order of the Appellate Assistant Commissioner against which the assessee preferred the appeal. We are, therefore, unable to accept as correct the finding of the Tribunal, that a certified copy of the order of the Appellate Assistant Commissioner is certainly not a desideratum for filing an appeal to the Appellate Tribunal.

10. The Tribunal was of the view, that the copy of the order served upon the assessee on 25th November, 1950, was itself a certified copy. The Tribunal pointed out:.Even the so-called certified copy which the assessee must have obtained in these cases and furnished with the memorandum of appeal nowhere seems different from the copy served on the assessee on 25th November, 1950.

We fail to appreciate the force of this observation. The copy served on the assessee on 25th November, 1950, was a copy of the order passed on appeal by the Appellate Assistant Commissioner. The copy furnished to the assessee on his application as a certified copy was also a copy of the same order. Both had necessarily to be copies of the same order. Apparently the Tribunal was of the view, that even if the provisions of Section 67-A of the Act applied for computing the period of limitation, the copy served upon the assessee on 25th November, 1950, should be taken to be the certified copy within the meaning of Rule 10(1).

11. The Income-tax Act itself does not define what is a certified copy. Section 76 of the Evidence Act (I of 1872) declares:

Every public Officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof as the case may be, and such certificate shall be dated and subscribed by such officer with his name and official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.

The copy delivered to the assessee on 13th February, 1951, on the application he made for the issue of that copy - whether 29th November, 1950 or 3rd January, 1951 was the real date of the application would be immaterial - was a certified copy which satisfied the requirements of Section 76 of the Evidence Act.

12. The learned Counsel for the Department referred to Section 54 of the Income-tax Act and contended that the copy delivered to the assessee on 13th February, 1951, should not be viewed as a certified copy within the scope of Section 76 of the Evidence Act, because it was not a copy of a public document. We are unable to accept this contention. The test prescribed by Section 76 of the Evidence Act is whether the person who applies for a copy of a document has a right to inspect it. It could not be denied that the assessee had a right to inspect the order passed on appeal by the Appellate Assistant Commissioner. Whether any other person would have a right to inspect that document would really be irrelevant. It is the person who has a right to inspect that is given the right to obtain a copy. That is the scheme of Section 76 of the Evidence Act. The assessee had the right to inspect the document in question, the order of the Appellate Assistant Commissioner, and he had the right to obtain a copy. Section 54 of the Income-tax Act did not bar that. It should be remembered that a copy of the order had to be communicated to the assessee, and it was in fact communicated to the assessee on 25th November, 1950. Obviously it could not be contended that such communication constituted a violation of Section 54 of the Income-tax Act. That should suffice to show that the assessee had a right to inspect the original order of the Appellate Assistant Commissioner, a certified copy of which the assessee sought.

13. In Rama Rao v. Venkataramqyya : [1940]8ITR450(Mad) , a Full Bench of this Court held:

Section 54 of the Income-tax Act does not make the issue of a certified copy of an income-tax return to an assessee unlawful. The return is a confidential document and cannot be disclosed to a third party, but there can be no objection to the maker of a return having a copy for his own purposes if he so desires. So far as the assessee is concerned, he is not bound to treat the document as confidential.

If a return made by the assessee which forms part of the record of the Income-tax Officer, does not fall within the scope of section 54, when the assessee himself requires a copy of that return a fortiori a copy of the order passed by the Appellate Assistant Commissioner could not fall within the scope of Section 54 of the Income-tax Act so far as the assessee himself is concerned. The learned Judges of the Full Full Bench also observed:

The record of an income-tax case must be regarded as the record of the acts of the Income-tax Officer in making his assessment and therefore any document properly on the record is just as much a public document as the final order of assessment.

14. See also the Union of India v. Kanakarathnam : [1955]27ITR496(Mad) . We have no hesitation in rejecting the contention of the learned Counsel for the respondent, that the order of the Appellate Assistant Commissioner was not a public document within the meaning of Section 76 of the Evidence Act. If the contention of the learned Counsel for the respondent, that Section 54 of the Income-tax Act barred application of Section 76 of the Evidence Act, were to be upheld, neither the copy served on the assessee on 25th November, 1950, nor the copy delivered to him on 13th February, 1951, could be viewed as a certified copy. But then, of course, the contention of the learned Counsel for the respondent was that Section 76 of the Evidence Act would not apply to the copy required and prescribed by Rule 10(1) of the Appellate Tribunal Rules. That contention we must reject.

15. The order of the Appellate Assistant Commissioner, dated 5th November, 1950, was a public document. The assessee had a right to inspect it. He had, therefore, a right to apply for a certified copy of that order.

16. The learned Counsel for the assessee contended that, even if the copy of that order served upon the assessee on 25th November, 1950, could be viewed as a certified copy within the meaning of Rule 10, he could not be denied the benefit of Section 67-A of the Act, because it was not that copy which he submitted along with the memorandum of appeal but the certified copy granted to him on his application and delivered to him on 13th February, 1951. That contention, in our opinion, is well founded, and it is not, therefore, necessary for us to express any opinion on the question, whether the copy of the order communicated to the assessee on 25th November, 1950, was itself a certified copy within the meaning of Rule 10(1).

17. The principle laid down by a Full Bench of this Court in Tirumal Reddy v. Annavema Reddy (1933) 66 M.L.J. 687 : I.L.R. Mad. 560, certainly supports the contention of the learned Counsel for the assesseee. See also the decision of a Full Bench of the Bombay High Court in Muralidhar v. Motilal (1936) 39 Bom. L.R. 32 . Section 33(1) of the income-tax Act provides for a copy of the appellate order being served on the assesseee. But there is nothing in the Act or in the Rules framed under the Act to indicate that this is the copy the assessee should submit to the Tribunal along with the memoramdum of appeal. All that Rule 10(1) requires is that one at least of the copies submitted with the memorandum of appeal should be a certified copy of the order appealed against. The assessee could apply for a certified copy for purposes of preferring an appeal, keeping for his own use the copy of the order of the Appellate Assistant Commissioner served upon him in compliance with the requirements of Section 33(1) of the Act. If the assessee is entitled to a certified copy, it is the certified copy actually submitted with the memorandum of appeal, to comply with the requirements of Rule 10(1), that has to be examined to verify if the requirements of Section 67-A of the Act are satisfied. It is the time requisite for obtaining that certified copy submitted with the memorandum of appeal that has to be excluded, if Section 67-A applied. That would be the result of the application of the principle laid down by the Full Bench of this Court in Tirumal Reddy v. Annavema Reddy (1933) 66 M.L.J. 687 : I.L.R. Mad. 560 .

18. The next contention of the learned Counsel for the respondent was that the period of limitation should be computed only with reference to Section 33(1) of the Act and not with reference to Section 67-A. Section 33(1) was amended in 1941, and the 60 days prescribed had to be computed with reference to the date on which the order was communicated to the assessee. Before 1941 there was no requirement that the copy of the order itself should be served upon the assessee. It was enough if he was served with a notice of the order. Section 67-A was enacted by the Income-tax Second Amendment Act, 1930 (XXII of 1930). Nonetheless we see no scope for holding that the period of limitation prescribed by Section 33(1) of the Act is not governed by Section 67-A of the Act. Both the statutory provisions have to be read together. It was an analogous position that arose for consideration in Muralidhar v. Motilal (1936) 39 Bom. L.R. 32 (F.B.), where the learned Judges pointed out that Article 151 of the Indian Limitation Act had to be read in conjunction with Sub-sections (2) and (3) of Section 12 of the Limitation Act. The learned Judges also pointed out that:

the time requisite does not mean the time actually required but the time properly required for obtaining copies If the time actually taken in obtaining the copies is due to any dilatoriness on the part of the appellant, then that time is not allowed to him.

19. The position is that Rule 10(1) requires a certified copy to be produced. If a certified copy is produced, the requisite time taken to obtain that certified copy, actually produced in compliance with Rule 10(1), would stand excluded under Section 67-A of the Act in computing the period of limitation prescribed by Section 33(1) of the Act.

20. It was not disputed that, even if the period to be excluded under Section 67-A of the Act was only that between 3rd January, 1951, and 6th February, 1951, the appeal presented to the Tribunal on 23rd^February, 1951, would be within the period of limitation allowed by law.

21. What we have recorded above is sufficient to answer the question referred to us in the affirmative.

22. Even were it only a case of examining the correctness or propriety of the order of the Appellate Tribunal refusing to exercise its discretion in favour of the assessee, we would have been inclined to hold that the circumstances of the case called for the exercise of the discretion to condone the delay, assuming there was delay - in fact there was no delay - in favour of the assessee. But we are not resting our answer to the question on this feature of the case.

23. As we have recorded above, our answer to the question referred to us is in the affirmative and in favour of the assessee. The assessee will be entitled to the costs of the reference. Counsel's fee Rs. 250.


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