2003 (11) TMI 51 - HC - Income Tax

The petitioner has challenged the constitutional validity of the proviso to section 256(1) of the Income-tax Act, 1961, which permits the application under section 256(1) to be filed within further period not exceeding 30 days than that prescribed in the main part of section 256(1), i.e., 60 days. Thus the proviso permits the filing of a reference application within 90 days in appropriate cases There is no violation of article 14 or other provisions of the Constitution by the proviso in question. In rare and very exceptional cases if a reference application could not for some reason be filed within 90 days and the party can show that he had sufficient cause for the delay then the High Court under article 226 of the Constitution can give relief because it is well settled that alternative remedy is not an absolute bar to a writ petition - Held that the proviso to section 256(1) is constitutionally valid

Summary

Issues:
Challenge to constitutional validity of proviso to section 256(1) of the Income-tax Act, 1961.

Analysis:
The court addressed the challenge to the constitutional validity of the proviso to section 256(1) of the Income-tax Act, 1961, which allows for an extended period not exceeding 30 days beyond the prescribed 60 days for filing a reference application. The petitioner argued that there might be cases where even 90 days are insufficient for filing a reference application. The court noted that while other provisions in the Income-tax Act do not specify a maximum period for condoning delays, the proviso in question sets a clear limit of 30 days for extension. The court refrained from questioning Parliament's decision in this regard and found no violation of constitutional provisions, such as article 14, by the proviso.

In exceptional cases where a reference application could not be filed within 90 days due to sufficient cause, the High Court under article 226 of the Constitution could provide relief, as an alternative remedy does not bar a writ petition. The court declined to declare the proviso ultra vires, highlighting that if it were quashed, the petitioner would only have 60 days instead of 90 days to file the application. Therefore, the court concluded that nullifying the proviso would not benefit the petitioner and dismissed the writ petition.