Applicability of Sec.261 to SLP in Supreme court. - Income Tax - 1379/CBDT

INSTRUCTION NO. 1379/CBDT Dated: February 2, 1981 The Board have received some references from the CsIT regarding the procedure to be followed in cases where petition for special leave to appeal to Supreme Court is to be filed direct without obtaining a certificate of fitness from the High Court u/s.261 of the I.T.Act and also regarding the correct provisions for counting the limitation where oral request/petition for obtaining the certificate of fitness from the High Court u/s. 261 has been rejected. 2.1 After Article 134A of the Constitution was inserted, the party aggrieved by the judgement of the Division Bench of the High Court in appeal has to orally request the Court immediately after the judgement is pronounced that the certificate of fitness as envisaged in Article 133 of the Constitution may be granted for filing on appeal to the Supreme Court. Although the date on which the judgement is pronounced and the date on which such oral application is to be made would be the same it appears that the order of the High Court rejecting or granting the request for the certificate of fitness under article 133 may be passed after a few days. Certain doubts have arisen regarding the provisions for counting the date of limitation in such matters as were subjected to oral application for certificate of fitness under article 134 A. 2.2 The Board advised as under for the queries raised in this regard:- a) As per the Article 133 of the Schedule to the Limitation Act, 1963 in a case where leave to appeal was applied for but was refused by the High Court, the period of limitation shall be 60 days from the date of order of refusal. Therefore the limitation has to be counted from the date of the order of refusal passed by the Court. In a case where an oral request has been made to the Court for the grant of a certificate under Article 133 of the Constitution and the same has not been decided along with the writ petition and the date of rejection of the said oral request can be ascertained from the judgement, the period of limitation has to be counted from that date. If it is not so ascertainable the period of limitation has to be counted from that date. If it is not so ascertainable, the period of limitation of 60 days may have to be counted from the date of judgement. (b) As time taken for obtaining the certified copy of the judgement of the court has to be excluded are computing the period of limitation. Attention is also invited to Instruction No. 503, date 2-2-73 of the Board. 3.1 The mandatory provisions in the Supreme Court rules for filing application for leave to appeal in the High Court before filing petition for special leave to appeal has been done away with by deleting the provisions of rule 3 order XVI of the Supreme Court rules. Thus the option has been given to the aggrieved party either to file petition for leave to appeal in the High Court in the first instance and on rejection thereof to file a special leave petition in the Supreme Court or to come straight to the Supreme Court by filing a special leave petition. The rules provided for 90 days from the date of the High Court's judgement if a direct special lave petition is to be filed. Regarding the above context the doubt is clarified as the period of 90 days in a case where the petition for special leave to appeal is filed directly in the Supreme Court will be counted after excluding the time taken in obtaining the certified copy of the impugned judgement. 4. The Board have been advised that the revised rules of the Supreme Court would apply even to Income-tax references and that irrespective of the provisions of sec.261 of the I.T.Act the aggrieved party without obtaining such certificate from the High Court can come direct to the Supreme Court by way of special leave petition. Some doubts have been expressed that in spite of the amendment in the Supreme Court rules and unless sec.261 of the I.T.Act is also suitably amended, the correct procedure in Income-tax references may be to apply to the High Court for issue of the necessary certificate u/s.261. The Board have been advised that under Article 136 of the Constitution a petition for special leave to appeal against any judgement, decree, determination, sentence or order in any case or matter passed or made by any Court or Tribunal in the territory of India can be filed in the Supreme Court. Under the said provision the Supreme Court is competent to entertain special leave petition against any judgement of the High Court. Thus a petition for special leave to appeal will lie even in Income-tax matters against the judgement of the High Court. 5. As per Instruction No.505 the time taken in obtaining the certified copy of the High Court's judgement and not of the order refusing leave to appeal to the Supreme Court is allowed to be excluded for calculating the limitation provided the same has been applied for after the refusal of leave to appeal. Then the instruction says that the certified copy of the impugned judgement should be applied afresh after the certificate has been refused even though a certified copy of the application for leave to appeal to the Supreme Court. The Board have been advised that after a petition for leave to appeal has been decided by the High Court, the Department is competent to apply for a certified copy of the judgement within the prescribed period for the second time. The time taken for obtaining the certified copy of the said judgement will be excluded in computing the period of 60 days for the purpose of filing a petition for special leave to appeal. Thus in both the situations mooted above, the time taken for obtaining the certified copy of the judgement second time will be excluded.