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TMI Blog1991 (4) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... by it did not fall under section 139(5) of the Act and it was not a valid return and the assessment made with reference to that return was void and without jurisdiction. The said appeal was allowed in pari by the Tribunal on 28-9-1984. In the appeal, advocate Shri K. Ranganatha Chari was the representative authorised by the assessee to represent it before the Tribunal. It is stated that the Managing Partner of the firm came to know that the appeal was disposed of and the order of the Tribunal was despatched by the Tribunal on 12-10-1984 by registered post to the assessee';s said counsel. This was received by Shri Chari on or about 14-10-1984. The Managing Partner of the firm then contacted the said counsel on 5-2-1985 and enquired when the counsel delivered the order received by him to the assessee';s Managing Partner. Thereafter, the assessee filed a writ petition before the Hon';ble High Court of Andhra Pradesh at Hyderabad under Article 226 of the Constitution of India challenging the assessment as confirmed by the Tribunal as being void and without jurisdiction inasmuch as it was made on the basis of a return which was non est. It was held that even if the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o send a copy of the order passed under this section to the assessee. 4.On the other hand, the learned representative for the revenue vehemently replied that: The assessee did not choose to seek remedy under section 256 of the Act at the appropriate time when it should have been taken. Leaving it aside, he has sought extra ordinary remedy of Writ Petition before the High Court. The High Court has also not directed the Tribunal to serve a copy of the order on the assessee. The direction is only regarding a request to approach the Tribunal to communicate to the assessee a copy of the order, for being decided upon whether it could be done so as per law. Having failed in the writ proceedings, the assessee is now falling back by way of somersault to somehow or other praying to the Tribunal leading to the relief under section 256(1) at this very much belated stage. As far as the service of the order is concerned, in fact it has been admitted by the assessee itself to have been received and in any event it must be deemed to have been received by the assessee. He also added that no miscellaneous petition could also lie as no mistake is there apparent from record in the order of the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed and on that ground seeking relief for filing a reference application before the Tribunal, he went on writ proceedings on a different prayer for quashing the assessment order on the ground that it was void, without jurisdiction and barred by limitation, or in the alternative, to direct the Income-tax Officer to modify the said assessment to the entire extent of ₹ 1,69,890 as claimed by the assessee and pass such orders as may be just. When this Miscellaneous Petition was refixed by the Tribunal to file copies of the relevant affidavits of the parties to the Writ Proceedings impleading the Tribunal also as one of the respondents therein, a copy of the additional affidavit alone on behalf of the petitioner was filed before us but not the main affidavit of the petitioner. However, a judgment in the Writ Petition of the Hon';ble A.P. High Court was filed in this case. We have gone through the same. 8. From the judgment of the Hon';ble High Court, we note that main prayer in the Writ Petition is challenging the assessment order as aforesaid. The High Court, however, has said that it did not propose to express any final opinion on the merits of the contention but su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 254(3) of the Act and if and when such application is filed, the Tribunal shall verify the relevant facts, examine and dispose of the same in accordance with law. In these circumstances, we are entertaining this application though it is not a miscellaneous petition under section 254(2), for duly verifying the relevant facts, examining and disposing them in accordance with law as directed. 10. It is a well known proposition of law that when there are two remedies open to an assessee/party and he elects one of them, but fails on merits, the time during which it was sought cannot be excused for the purpose of seeking the other remedy (vide Chhotelal v. Jamnadas AIR 1963 MP 20 at 21). In the instant case, it is the same thing that had happened, i.e., to say the assessee having elected the remedy under writ petition instead of under reference application and having failed in the writ proceedings he is now trying to fall back upon the remedy under reference application and for getting out of the problem of limitation as regards the reference application. And at this stage the present course of action is taken up by the assessee praying the Tribunal to serve upon the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing admittedly received the same by the assessee from his own counsel. Hence that decision is also not applicable being distinguishable. 13. The next decision relied upon by the assessee is in the case of Nandram Hunatram (supra). It is a case where the order in the appeal in which the advocate appeared before the Tribunal on behalf of the assessee was handed over to the advocate who in turn - forwarded it to the assessee, it was held that limitation for application for reference would start not from the date of receipt of the order by the advocate and that, therefore the application filed by the assessee had to be treated as made within the time allowed therein. Thus it could be seen that it was a case concerning as to which date of receipt, i.e., either by the assessee or his counsel, has to be taken into account as the starting point of the limitation period and ultimately it was held that the date of receipt of the order by the advocate could not be taken as the starting point of limitation but that of the receipt of it by the assessee. 14. Though the instant case may appear to resemble with that case, one cannot fail to notice that what is before us is not a reference applic ..... 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