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TMI Blog2010 (1) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of specific provisions in this regard under sections 282 and 288 of the Income-tax Act, therefore, need not be discussed. - decided against the Assessee. - ITAD NO 221/05 - - - Dated:- 29-1-2010 - PRAKASH KRISHNA, YOGESH CHANDRA GUPTA, JJ. Judgment: Yogesh Chandra Gupta J.- 1. The above application filed under section 5 of the Limitation Act for condonation of delay in filing the accompanying income-tax appeal under section 260A of the Income-tax Act, 1961 (here-inafter referred to as "the Act"), is up for consideration. 2. The appeal has been preferred against the order dated November 25, 2004 passed in I. T. A. No. 122 (Alld.)/2001 for the assessment year 1997-98. The office has reported that the said appeal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Ajai Kumar Gupta, advocate, has deposed that he received the copy of the order dated November 25, 2004 by post from Sri S. P. Agrawal, advocate, some time in the month of January, 2005 and forgot to com-municate to the appellant. The copy of the order was misplaced and when on May 24, 2005 Sri R. L. Yadav, the general manager of the assessee-bank contacted him and inquired about the result of the aforestated Income-tax Appeal No. 122 of 2001, then, the deponent made efforts to search out the aforestated copy of the order dated November 25, 2004 and it was found on the same day, i.e., May 24, 2005 and was supplied to Sri R. L. Yadav on that very day. The said copy was placed in another file by mistake. 6. On the facts as stated above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-assessee. Elaborating the argu-ment, it was stated that the service upon the counsel for the assessee is not a valid service inasmuch as under rule 35 of the Rules referred to above, the Tribunal was duty bound to communicate to the parties, after the order is signed. In other words, the service of the order to be a valid service, should be made to the assessee and to the Commissioner. Reliance was placed by him on the following decisions : (1) CST v. Shiv Narain Rameshwar Pd.[1970] 26 STC 299 (All) ; (2) Sunder Lal Janeshwar Dass v. CST [1971] 27 STC 282 (All) ; (3) Arjun Lal Upadhya v. CST [1987] UPTC 514 (All) ; and (4) Tulsi Das Baboo Lal v. State of U. P. [1991] UPTC 1225 (DB). 10. All the above cases relate to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant's counsel before the Income-tax Appellate Tribunal. Along with the counter-affidavit, a copy of vakalatnama in favour of the said counsel has been filed which shows that the said counsel was duly authorized to receive all documents on behalf of the assessee-appellant. Sri S. D. Singh, learned counsel for the appellant, as a matter of fact, did not dispute before us the fact that the said counsel was authorized to receive all the docu-ments on behalf of the assessee-appellant. This being so, it is but evident that the said learned counsel was duly authorized representative of the assessee. Order 5, rule 12 of the Code of Civil Procedure lays down a pro-vision for service on the defendant or on his agent. It says that wherever i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd necessary for the conduct of the case and the settlement of dispute as said by the apex court in the case of Manoharbahal Colliery Calcutta v. K. N. Mishra, AIR 1972 SC 1632. What to say of implied authority to do all that is expedient, proper and necessary, in the case on hand there being an express autho-rization by the appellant-assessee in favour of its counsel Sri Agrawal, it cannot be said that the receipt of copy of the order of the Tribunal by him was in any manner inexpedient or improper or unnecessary. 16. The submission of the learned counsel for the appellant that in view of the plain language of section 260A of the Act, service should be effected on the assessee is without any substance. Its sub-section (2)(a) provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted the position that in view of the recent Full Bench decision of the court CIT v. Mohd. Farooq [2009] 317 ITR 305 (All) ; [2009] UPTC 1162 [FB] an application under sec-tion 5 of the Limitation Act for condonation of delay in filing the appeal is not maintainable. 19. Besides above, the period of limitation for the purposes of filing of an appeal starts running from the date of receipt of the copy of the order of the Tribunal, which cannot be an uncertain or disputed date. For the pur-poses of calculation of the period of limitation, its starting point must be a definite point and it cannot be left to be guessed. Nor the said event can be left at the sweet will of either party to a litigation. On the facts of the present case, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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