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1984 Supreme(Del) 119
High Court Of Delhi
COMMISSIONER OF INCOME TAX - Appellant
Versus
BHARAT HEAVY ELECTRICAL LIMITED - Respondent
C.M. 122 of 1983
Decided On : 05/16/1984
V.S.Gupta, VAZIR SINGH
The requirement of filing copies of orders of the Income-tax Officer and Tribunal in a petition under Section 256(2) of the Income-tax Act, 1961 is directory and not mandatory. Delay in re-presentation of a petition can be condoned if there are no mala fides or any contumacious conduct and the explanation furnished in the application is truthful and frank.
Headnote:
INCOME TAX - REFERENCE TO HIGH COURT - CONDONATION OF DELAY IN RE-FILING PETITION - WHETHER REQUIREMENT OF FILING COPIES OF ORDERS OF INCOME-TAX OFFICER AND TRIBUNAL IS MANDATORY OR DIRECTORY - WHETHER DELAY IN RE-PRESENTATION CAN BE CONDONED - WHETHER RULE 1 OF CHAPTER VII-B OF VOLUME V OF HIGH COURT RULES AND ORDERS IS MANDATORY OR DIRECTORY.
Fact of the Case:
Petitioner filed a petition under Section 256(2) of the Income-tax Act, 1961, praying for a direction to the Income-tax Appellate Tribunal to state a case and refer to the High Court the proposed questions of law. The petition was returned by the registry for removing objections. The petitioner re-filed the petition along with the annexures after a delay of about 8 months. The registry raised a question as to the applicability of Chapter VII-B of Volume V of the High Court Rules and Orders read with Chapter I and prima facie, it had not been substantially complied with. The petitioner sought leave of the Court to file an application for condonation of delay and the leave was granted.
Finding of the Court:
The Court held that the requirement of filing copies of orders of the Income-tax Officer and Tribunal is not mandatory but directory. The Court further held that the delay in re-presentation can be condoned if there are no mala fides or any contumacious conduct and the explanation furnished in the application is truthful and frank.
Issues: 1. Whether the requirement of filing copies of orders of the Income-tax Officer and Tribunal is mandatory or directory? 2. Whether delay in re-presentation can be condoned?
Ratio Decidendi: 1. The Court held that the requirement of filing copies of orders of the Income-tax Officer and Tribunal is not mandatory but directory. The Court reasoned that the object for the copies of documents to accompany the petition is to understand the points of law on which a reference is desired, then it cannot be mandatory. The petition may itself contain a verbatum narration of the orders or even a gist to understand the points raised. The copies can be filed later before the High Court takes up the petition if the narration is insufficient or incomplete. 2. The Court held that the delay in re-presentation can be condoned if there are no mala fides or any contumacious conduct and the explanation furnished in the application is truthful and frank. The Court reasoned that the rigorous tests which are usually applied in original institution need not be applied in representation of the petitions. There is no need in such cases to explain each day's delay in coming to the Court.
Final Decision: The Court allowed the application for condonation of delay and directed that the case be listed for admission in due course.
( 1 ) THIS petition under Section 151 of the Code of Civil Procedure prays for condonation of delay in re-filing the Income-tax Case after it was returned by the registry for removing the objections stated in the note sheet attached to the case.
( 2 ) THE petitioner filed a petition under Section 256 (2) of the Income-tax Act, 1961 (hereinafter referred to as the Act) praying for a direction to the Income-tax Appellate Tribunal for short called the Tribunal (to state a case and to refer to this Court the proposed questions of law for its opinion. In the petition, facts, giving rise to it are narrated. A copy of the order of the Income-tax Officer is purported to be enclosed as Annexure P-l. A copy of the order of the Commissioner of Income-tax (Appeals) is purported to have been enclosed as Annexure P-2. A copy of the order of the Tribunal in second appeal is purported to have been enclosed as Annexure P-3. A copy of the order of the Tribunal declining to refer the qucs lion of law is purported to have been enclosed as Annexure P-4. It is also averred that the Tribunal in its order dated April 12, 1982 served on the petitioner on May 17. 1982 declined to refer the question of law. The petition was filed on November 16. 1982. A petition to the High Court under subsection (2) of Section 256 for an order requiring the Tribunal to state a case and refer it to the High Court has to be made within six months from the date on which the petitioner is served with notice of refusal by the Tribunal to state a case. Admittedly, the petition has been filed within prescribed limitation.
( 3 ) THE petition was scrutinised and examined by the registry of the Court. A Deputy Registrar of this Court is authorised to return for amendment, within a time to be specified in an order to be recorded by him on the petition, any petition not drawn up in conformity with the directions, orders or in law. The Deputy Registrar found that Annexures P-l to P-4 purported to have been attached with the petition were not in fact enclosed even though mentioned in the index of the papers filed. The Joint Registrar by his order dated November 23, 1982 recorded. that all-the documents mentioned in theindex_are required to be filed and the petition was directed to be returned and to be re-filed within a week. The counsel for the petitioner refiled the petition along with the annexures P-l to P-4 on June 28, 1983.
( 4 ) AT the time of the motion hearing of the case, aquestion arose as to the applicability of Chapter VII-B of Volume V of the High Court Rules and Orders read with Chapter I and prima facie. it had not been substantially complied with. The counsel for the petitioner sought leave,. of the Court to file an application for condonation of delay and the leave was granted. It is thereafter that the present application has been filed praying that this Court may be pleased to excuse the delay that. occurred accidentally in refiling the petition. Notice- of this application was given to the opposite party, the assessee.
( 5 ) THE averments made HI the application are that it so happened that the papers got mixed up accidentally in the old records by the old clerk who was no longer in service and were traced by the new clerk when he was scrutinising the files; and that on discovery of these papers with objections, immediate steps were taken to get the defects removed which was done without any delay and the petition was refiled with the remarks duly recorded on the objection sheet. It is stated that the delay in re-filing the petition is accidental and due to bona fide reasons beyond the control of the petitioner. The application is supported by an affidavit of the new clerk of the counsel for the Income-tax Department. In the reply, it is stated that the defect of non-filing of the documents mentioned in the petition was not accidental or inadvertant inasmuch as it appears from the relevant papers that the documents which were duly indexed were perha
