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1988 (6) TMI 69

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..... of the case, the Appellate Tribunal was right in law in confirming the order of the CIT (Appeals) that disallowance u/c 40(c) in respect of perquisite value of interest on interest-free advances to the directors and a relative of directors be calculated on the debit balances at percentage of borrowed funds in the total assets of the assessee-company excluding share capital ?" 2. According to the application filed by the Commissioner, a notice of the order of the Tribunal was served on him5-5-1987. However, at the time of hearing of the Reference Application the respondent raised an objection stating that the reference application was barred by limitation. The Commissioner had filed along with the application a supplementary statement of facts and pointed out that the order of the Tribunal wash first served upon the Commissioner of Income-tax Officer, (Central)-I, New Delhi on 17-11-1986. But this was returned to the Assistant Registrar, Income-tax Appellate Tribunal,New Delhiby a latter dated11-12-1986pointing out that the jurisdiction over this case was not with him or theIncome-tax Officer Central Circleand the jurisdiction was with the inspecting Assistant Commissioner (Asses .....

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..... had been informed that the order of the Tribunal had already been served on the CIT, Central on 17th November, 1986. The respondent has stated that the service on the Commissioner, Central,Delhion17-11-1986was not a faulty service and in this connection, he placed before the Tribunal instructions issued by the Central Board of Direct Taxes as Instruction No. 1387 bearing F. No. 270/152/80-ITJ, dated3-3-1981. This instruction was issued in the light of a decision of the Bombay High Court in a similar case where the High court had observed that the order of the Tribunal, should ordinarily be served on the Commissioner, who had jurisdiction over the Income-tax Officer, whose name was mentioned in the form of appeal, and the limitation for the purpose of filing of the reference application would commence from the date of service of such Commissioner. The respondent has referred to the procedure laid down by the Board in such cases and he pointed out that the Commissioner in whose charge the case has been transferred should intimate the change to the Tribunal and in any case to ensure that the reference application is filed within sixty days from the date of service of the order on the .....

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..... oner,Bombayon7-7-1977. The Judicial Section of the CIT's office returned the copy of the order to the Registrar of the Tribunal on 23-8-1977 (after a period of 47 days) pointing out that the jurisdiction over the case had since been transferred to the ITO in Pune Charge and requesting that the said order should be served on the CIT, Pune. Thereafter the Registrar served the order of the CIT, Pune on1-9-1977. The reference application under section 256(1) was filed by the CIT, Pune on29-10-1977, but by mistake under column 2 of the Application in Form No. 37, the CIT, Pune gave the date of receipt of notice of the order as7-7-1977. Though the said mistake was pointed out to the Tribunal by filing a miscellaneous petition and by explaining that in fact the order of the Tribunal was received by the CIT, Pune on1-9-1977, the Tribunal by a common order dismissed the miscellaneous applications as well as reference application as time-barred. The Tribunal observed that under column 10 of Form of appeal, the appellant ITO stated the address to which notices might be sent to him and that he did not convey to the Registry and change of address. The Tribunal also remarked regarding the DR's i .....

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..... t since with effect from a particular date the case stood transferred to a particular Commissioner it is he who holds jurisdiction over the case in terms of Section 130(2) read with section 254(3) and as such the service of the order should be made to him. A copy of the communication to the Registry should be endorsed to the concerned Commissioner along with a copy of Tribunal's order made out by him." "(c) The transferee Commissioner as soon as he receives the endorsed copy of the letter addressed to the Registrar, Appellate Tribunal enclosing therewith a copy of the Tribunal's order will if the case deserves to be contested, file a reference application under section 256(1) within 60 days from the date of service on the transferring Commissioner. In case it is not possible to do some the Commissioner can invoke proviso to section 256 (1) and request the Appellate Tribunal to allow the application to be presented within a further period of 30 days. This procedure has been suggested by way of abundant caution." 10. Having regard to the legal position as coming out of the judgment of the Bombay High Court and also having regard to the position as explained by the Board, we have .....

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..... he purpose of filing an appeal before the Tribunal. This certificate under rule 15 of the Appellate Tribunal Rules is dated23-2-1984. During the fixation of this appeal the Assistant Registrar had written the following letter to the assessee company as well as the departmental representative with a copy to the Inspecting Assistant Commissioner (Assessment),Patiala: "Under the authorization by CIT,Patiala, Shri B. M. Singh, the IAC (Asstt.)Patialafiled on21-4-1984second appeal against the order passed by CIT (Appeals),New Delhiin Appeal No. 699/81-82 in the case of M/s. Pure Drinks (New Delhi) Ltd., for the A. Y. 1978-79, and this second Appeal was registered at number ITA No. 1881/Del. /84. However, the Appellant inadvertently mentioned Respondent M/s. Dalmia Biscuits (P.) Ltd., in Memo of Appeal while other particulars therein and in the Grounds of Appeal pertained to the responded abovesaid and were sent to him. Incidentally it further be mentioned that this appeal is cross-appeal by the department against the appeal filed by the assessee and disposed of by the Tribunal on17-4-1985vide ITA No. 150/Del. /84. Now this abovesaid departmental appeal is fixed for hearing on2-7-198 .....

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