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TMI Blog1991 (11) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... that the limitation matter will have to be considered properly. It is also submitted that the revenue claimed to have filed application for certified copy but nothing has been shown during the said period of 612 days, as to what steps have been taken by them for obtaining certified copy. It is urged that the department had violated the Income-tax Appellate Tribunal Rules particularly Rule 9 read with the Explanation. In course of his argument, the assessee's learned counsel mentioned a decision of the Hon'ble High Court in the case. as reported in 1990 GIR, Page 183 at Para 7 and it is submitted by him that the appeal cannot be admitted as the delay was due to gross negligence deliberately inaction on the part of the department and there was no bona fide reasons for such delay. It is vehemently urged that since the first appellate authority has given a decision, either parties got relief or advantage and if not appealed against that decision is not preferred, then the opposite party had acquired a vested right. It is urged that the department did not allow such order of the first appellate authority to become final even after a lapse of 612 days, by filing this appeal out of time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Act, 1922, the assessee concerned was entitled to have the time taking for obtaining certified copy, excluded, even though copy is not required to be filed along with application and even if the copy had been supplied to the assessee earlier. In the present case, the learned CIT (Appeals) apparently had earlier supplied copy of his order which is presently appealed against. But since the revenue had applied for certified copy for the purpose of section 268, read with rule 9, time required for obtaining certified copy would have to be considered and not ignored. 5. Rule 9 of the Income-tax Appellate Tribunal Rules, provided that a memorandum of appeal shall be in triplicate and shall be accompanied by two copies of appeals one of which shall be a certified copy of the order appealed against, amongst other things. Obviously, the appellant revenue have to file copies of such order of the learned CIT (Appeals) in two copies, one of which should be a certified copy. It was for that purpose that the revenue had applied for certified copy of the order appealed against. Of course, w.e.f 1-8-1987 Explanation has been added wherein and it has been provided that for the purpose o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Uttar Pradesh [1979] 118 ITR 326, the Hon'ble Supreme Court on the facts of that case observed that it is elementry that waiver is a question of fact and it must be properly pleaded and proved and no pleas of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. It was also observed that there can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandones it. In the present case before us, we did not find any material to say that the department has abandoned the right to receive the certified copy from the learned CIT (Appeals), as applied for by it earlier. 7. In course of his arguments, the assessee's learned counsel has also submitted that the department though did apply for certified copy, but it preferred to commit gross negligence and due to the lapse and inaction of the department, the learned CIT (Appeals) has not been able to supply the certified copy, particularly when both the appellant-ITO and the CIT (Appeals) are under the same department. It is normally expected that a party which alleges the existence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court on the facts of the case held that when harmonious construction is possible which further is the object of the Act, the same may be preferred to construction which leads to conflicting results. 9. We are here concerned with rule 9 which is a machinery or procedural provision. It is a sound rule of interpretation that in respect of machinery provision a construction which makes machinery workable should be preferred. In the case of CIT v. National Taj Traders [1980] 121 ITR 535 the Hon'ble Supreme Court observed that it was settled principle that fiscal statute should be construed strictly is applicable only to tax provision and not to those parts of the statute which constitute machinery provisions. 10. Thus, having regard to the rival contentions of both the sides vis-a-vis the requirement of the above rule and other provisions of the Act, I am of the clear opinion that on the facts of this case before me the appeal preferred by the revenue was not beyond time keeping in view, amongst other things, the rulings of the Hon'ble Supreme Court as well as the ruling enunciated in the case of Sardarmal Khumchand. 11. The appeal by the revenue is admitted for hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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