TMI Blog1996 (6) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... h these applications, the Commissioner also filed petitions accompanied with affidavits, for condonation of the delay of 136 days in making the applications. The Commissioner felt that there was delay in making the reference applications, as the orders of the Tribunal were first received by the CIT, (Central), Bangalore on 18-1-1994, who then forwarded the same to the CIT, (Central), Madras, who in turn forwarded the order to the CIT, Cochin, only on 6-6-1994 and it was received by him on 13-6-1994. The Tribunal passed a consolidated order in R.A. Nos. 171 172 /Coch/1994 on 22-5-1995 rejecting the reference applications as time barred. 2. The revenue has filed this Miscellaneous Petition with the plea that there was actually no delay in making the reference applications as the orders of the Tribunal were received by the CIT, Cochin, only on 13-6-1994 and the reference applications filed on 1-8-1994 were well within the prescribed time. Before us, Sri Harilal Naick, the Senior Departmental Representative, submitted that the Tribunal was not correct in rejecting the reference applications filed by the revenue on the ground that they were filed beyond the period of 30 days up to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who made the reference applications being the CIT, Cochin, to make the reference applications, he had the time of 60 days from the date of service of the order on him, i.e., from 13-6-1994. It was pointed out that the applications made on 1-8-1994 were well within the prescribed time limit and so there was no question of condoning the delay. According to the learned departmental representative, the confusion arose in this case only because by mistake, the Commissioner, Cochin, filed the petition for condonation of delay when there was in fact no delay at all. But Sri Naick maintained that a defect in the prayer will not disentitle a petitioner to the relief to which he is otherwise entitled in law and for that contention, he relied on the decision of the Allahabad High Court in the case of Shri Sidh Co. v. ITAT [1992] 194 ITR 747/64 Taxman 282. It was then submitted that in the order passed by the Tribunal rejecting the reference applications as time barred, there is a mistake of fact and also of law ; the factual mistake being that period of delay was reckoned from the date of service of the orders on a wrong person and the mistake in law being that the provisions of section 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce applications can be made by him only if he comes to know of the order passed by the Tribunal under section 254. But then he has to make the applications within the prescribed period of 60 days from the date upon which he is served with notice of the order. The contention of the Revenue is that though the orders of the Tribunal were received by the CIT (Central), Bangalore, on 18-1-1994, at that time he had no jurisdiction over the case, to receive the orders and it was serviced on a wrong person and so the period of 60 days provided in section 256(1) should not have been reckoned from the date of service of the orders on the CIT (Central), Bangalore, and by making such a reckoning of the period in the order passed by the Tribunal in rejecting the reference applications time barred, the Tribunal committed a mistake. In para 3 of its order, the Tribunal observed as under : " The case was heard on 13-12-1993. At the time of hearing, the Tribunal was not informed of the change of jurisdiction of the file from CIT, Karnataka (Central). Bangalore to CIT (Central), Madras, if there had been any such change. Even the petition for condonation of delay preferred by the CIT is silent abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the Tribunal. Section 256(1) of the Income-tax Act envisages the person who is served with the notice of the order of the Tribunal, the same Commissioner as the petitioner. It is difficult to envisage the law expecting a litigant, whether the assessee or the Commissioner, to make an application for reference, within 60 days of service of the order not on him, but on a difficult person. As pointed out by the learned departmental representative, there is thus a mistake in the order of the Tribunal in not considering the fact that under section 256(1), what is to be considered is the date of service of the order on the reference petitioner. The mistake in the order lies in reckoning the period of delay, from the date of service of the order on the Commissioner of CIT (Central), Bangalore, (who had no jurisdiction over the case at the relevant time) against the provisions of section 256(1) of the Act. 5. There is also merit in the contention of the learned departmental representative that there is a factual mistake in the order of the Tribunal in considering this as a case for condonation of delay in filing the reference application. Of course the confusion arose because the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the relief which he is entitled to in terms of section 256(1), with reference to the date of service of the order of the Tribunal, on him. 6. It is necessary to consider now the plea of the learned counsel of the assessee, that there is no mistake in the order of the Tribunal that can be rectified. In this connection, Shri C.K. Nair, submitted that it was a finding of the Tribunal that the service of the orders on the Commissioner of Income-tax (Central), Bangalore, was a valid service and that finding cannot be now changed. In the order of the Tribunal, there is no finding that serving the earlier orders on the CIT (Central), Bangalore, is a valid service. In para 3 of the order after discussing the circumstances under which the orders happened to be served on the CIT (Central), Bangalore, the Tribunal observed :--- "These orders were not returned to the Tribunal by the CIT (Central), Bangalore, notifying the Tribunal about the jurisdictional changes and requesting the Tribunal by the CIT (Central), Bangalore, to serve the orders on the CIT having appropriate jurisdiction. Had this been done, the delay has to be reckoned from the date of service of the order of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hossein Khan v. Rughoonath Pershad [1871] 14 M.I.A. 4 1, it was observed as follows : " Mr. Fraser appears to have supposed a Judge of that Court unable to correct his own error, in sending forth, per incuriam, an invalid order which he would not have made if duly informed. To proceed, so far as the practice of his court will allow him, to recall and cancel an invalid order is not simply permitted to, but is the duty of, a judge, who should always be vigilant not to allow the act of the Court itself to do wrong to the suitor. It would be a serious injury to the suitor himself to suffer him to attempt to execute an inoperative order." (See 75 ITR 646 at page 651) 9. In the case of Mangat Ram Kuthiala v. CIT [1960] 38 ITR 1, the Punjab High Court held, " that it was a settled rule that a judicial Tribunal could recall and quash its own order in exceptional cases when it was shown that it was obtained by fraud or by palpable mistake or was made in utter ignorance of a statutory provisions and the like, and for the application of that rule the class of the Tribunal was not a material matter but what was of substance and material nature of the proceedings before it : if the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed prejudice to the Reference Petitioner, i.e., the Commissioner of Income-tax, Cochin. It may be reiterated here that as the provisions of section 254(2) are not applicable in respect of an order passed under section 256(1), we are setting right the mistake in that order in exercise of the inherent power with the Tribunal as recognised by judicial authorities as discussed above. 12. In the circumstances discussed above, we recall the order passed by this Tribunal on 22-5-1995. We also take note of the fact that the orders passed by the Tribunal under section 254(1) were served on the Reference Petitioner, i.e., the Commissioner of Income-tax, Cochin only on 13-6-1994, and the reference applications filed by the Commissioner on 1-18-1994 is within the period of 60 days mentioned in section 256(1) of the Income-tax Act and in that sense there is no delay to be condoned and so the petition of the Commissioner for condonation of the delay as also the order of the Tribunal rejecting that petition was misconceived. 13. The Reference application in R.A. Nos. 171 172/Coch/94 filed by the Commissioner of Income-tax, Cochin on 1-8-1994 will be posted for hearing in due course. Notic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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