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TMI Blog1987 (12) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... red by 544 days as the order had been served on the Commissioner onthe 7th August 1985, while the present application was moved in this Tribunal onthe 3rd April, 1987. The office reported that the copy of the order passed in the aforesaid appeal was sent to the Commissioner of Income-tax, Central, onthe 1st August, 1985but the official concerned refused to receive the same. The copy of the order was again sent to the Commissioner of Income-tax,CentralRevenueBuilding,New Delhionthe 8th August, 1985but again the person concerned refused to receive the copy. Thereafter, the copy of the order was again sent to the Commissioner of Income-tax,CentralRevenueBuildingon5-2-1987. On that date it was accepted and the present application was filed thereafter. The Commissioner-applicant has mentioned in the application that the copy of the order served on the Commissioner on5-2-1987. The Commissioner thus treats the service of the copy of the order as having been made on5-2-1987and if that be the correct date of service, the application would be within limitation. Notice was issued to the Commissioner stating the application is barred by time and after repeated adjournments the Senior Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellate Tribunal) Rules, 1963 and rule 35 of Tribunal shall after the order is signed, cause it would be communicated to the Commissioner. 5. It was in discharge of the Tribunal's obligation to send a copy of the order passed in the aforesaid appeal to the Commissioner that the Registry of this Tribunal sent a copy of the impugned order to the Chief Commissioner of Income-tax,Delhionthe 1st August, 1985. As many as 41 orders entered at Serial Nos. 1 to 41 in the Peon Book were sent to the Chief Commissioner on that date. out of these 41 orders, the official concerned deputed by the Commissioner of Income-tax to receive the papers on his behalf, received 14 orders only. The order in question which was mentioned at Serial No. 29 was amongst the orders that the said official refused to accept. Again on 8-8-1985 the Registry sent a copy of the order in question to the Chief Commissioner of Income-tax-cum-Commissioner of Income-tax, Delhi-I. The procedure adopted was the same, i.e., the copies of the orders were entered in the Peon Book and sent through a peon for delivery. On this date as many as 134 orders were sent. Out of them 28 orders are entered on the date25-7-1985/8-8-1985a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He referred to rules 17 and 19 of Order V of the Code of Civil Procedure. Rule 17 provides that where the defendant ordinarily resides or carries on business ... shall return the original to the Court with a report endorsed therein or annexed thereto which he did so affixed the copy, the circumstances under which he did so and the name and address of the person (if any) by whom the house was identified and in whose summon is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and say, if it has been so verified, examine the serving officer on oath, or cause to have been so examined ... and shall either declare that the summon has been duly served or order such service as it thinks fit. According to the learned Departmental Representative, this procedure was not adopted by the Tribunal when the copy of the order was refused on1-8-1985and8-8-1985and therefore, there was no proper service of the copy of the order. The learned Departmental Representative also contended that section 256(1) of the Income-tax Act, 1961 confers a substantive right on the Commissioner or the assessee to seek a reference and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. A requisition is an intimation which requires the person to whom it is addressed to do or to refrain from doing a certain act. A notice may similarly require a person to do or not to do an act. A summons invariably requires a person to attend and answer certain civil or criminal charge. It is those types of notices, summons, or requisitions which have to be served in the manner prescribed in section 282(1) of the Income-tax Act or in the Code of Civil Procedure. Where, however, a mere intimation is intended to a particular person or to the public at large without obliging any particular person to act in a certain manner, such notices need not be served according to the strict procedure referred to above. that is why some notices are required to be published in the Official Gazette and publication of such notices is notice to the public at large. Such notices are meant for certain information and it is for the person concerned to take action, if any. 8. The learned Departmental Representative had relied on the cases of Kalekhan Mohammad Hanif v. CIT 30 ITR 522 (Nag.) and Jayalakshmi Cloth Stores v. ITO [1981] 132 ITR 764 [1956] (AP.). In the case of Kalekhan Mohammad Hanif simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand could not be issued in the absence of an assessment order and there was no presumption that an assessment order had in fact been passed. On behalf of the assessee reliance was placed on Agricultural Co. v. CIT [1974] 93 ITR 353 (Delhi) and K. C. Tiwari Sons v. CIT [1962] 46 ITR 236 (Bom.). In both these rulings it was held that section 63(1) of the Income-tax Act, 1922 which was in pari materia with present section 288(1) was not exhaustive and it was permissible to have the service of notice effected by any other mode mentioned in section 61. We have already held that the copy of the order being neither a notice, summons or a requisition. Section 288 had no application. These rulings, however, do show that even in cases in which section 288 was applicable a mere irregularity in the procedure may not always invalidate the service. 10. For the reasons discussed above, we are of the opinion and we hold that for the supply of copy of order to the parties, it was not necessary for the Tribunal to effect service thereof in the manner prescribed for the service of summons, notices, or requisitions. It is enough if the Tribunal puts the orders in the course of transmission in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as its legal obligation were concerned, the tribunal need not have taken up the matter with the Chief Commissioner and arranged a conference between its representatives and the Chief Commissioner who ultimately agreed to accept all copies and to distribute the same himself to appropriate officers. If an assessee or the Commissioner refused to receive the copy of the order once or twice there is nothing that debars the Tribunal from supplying the assessee or the Commissioner a copy if the assessee or the Commissioner wants it. It was under that administrative capacity that the Tribunal sent the copies of the orders that had earlier been refused by the Chief Commissioner to him once over again. It did not mean that the Tribunal ignored the earlier refusal and its legal effect. 13. As already observed it was contended on behalf of the Commissioner that the right to seek reference under section 256(1) is a valuable right and this should not be frustrated by technical rules of limitation. We have no doubt that a right granted under section 256(1) is a valuable right but rules of limitation have been created to put an end to litigation and to prevent a person from raking up a legal qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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