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TMI Blog2001 (10) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner of Income-tax, Central Circle, Bangalore, sent the appellate order to the Commissioner of Income-tax, Central Circle, Madras, to whom the jurisdiction was transferred. It appears that there was some delay in the office of the Commissioner of Income-tax at Madras, where the appellate order was stated to be misplaced. However, the Commissioner of Income-tax at Madras also had ceased to have jurisdiction and therefore he forwarded the order to the Commissioner of Income-tax, Cochin, who had jurisdiction in the matter. The Commissioner of Income-tax, Cochin, thereafter filed the reference application before the Income-tax Appellate Tribunal, Cochin Bench, accompanied by a delay condonation petition for condoning the delay of 136 days. It may be noticed that the limitation for filing the reference application was calculated reckoning the date of receipt of the appellate order of the Tribunal by the Commissioner of Income-tax, Madras, on January 17, 1994, who had ceased to have jurisdiction in the matter. Under the proviso to section 256(1) of the Income-tax Act, the Income-tax Appellate Tribunal does not have the power to condone delay of more than 30 days in filing the reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date on which it was received by the Commissioner of Income-tax, Cochin. In any case, counsel contended that once the Tribunal had dismissed the reference application as time barred, it had no jurisdiction to restore the same by rectification of the dismissal order dated May 22, 1995, either under section 254(2) of the Act, or under its inherent power. On the other hand, the Department's counsel contended that it was a mistake for the Commissioner of Income-tax, Cochin, to have conceded that the date of receipt of the appellate order as the date on which the order was received by the Commissioner of Income-tax at Madras who had no jurisdiction in the matter. According to him, the date on which the order is received by the Commissioner having jurisdiction in the matter, is the date of actual service and with reference to that date, the reference application filed was within time. It is his contention that the party should not be made to suffer on account of a mistake committed by the Tribunal in so far as it has treated the reference application filed within time as one filed beyond time, even though the Commissioner of Income-tax, Cochin, has by mistake admitted the delay and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate order, the same power cannot be invoked in a case like this where the Tribunal dismissed the reference application as time barred by mistake. Therefore, the power has to be found elsewhere to correct such a mistake committed by the Tribunal. In the view taken by us, that the dismissal of the reference application is only to be taken as a refusal to entertain the reference application, as one treated as filed beyond the time limit, it should be taken that the reference application so treated as defective still remains to be disposed of when the defect is cured or when the Tribunal is satisfied that there is actually no such defect. Therefore, we are of the view that when the Tribunal noticed that the reference application was not really time barred, it is still free to dispose of the reference application on the merits, as the same is held to be still pending. In any case in view of the developments in this case, we proceed to consider whether the Tribunal has jurisdiction to restore the reference application once dismissed by it as time barred by mistake. We are inclined to agree with the position canvassed by counsel for the Department that the Tribunal has inherent power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1999 at the instance of the assessee, in favour of the Department and against the assessee. I.T.R. No. 61 of 1997 is the reference at the instance of the Department, and the two questions referred are the following: "1. Whether, on the facts and in the circumstances of the case, and also the issue before the assessing authority being whether the unexplained investments declared by the minor children under the Amnesty Scheme could be added in the assessment of their father, the Tribunal is right in directing the Assessing Officer to determine whether the amount invested by the minor children in immovable properties during the previous year relevant to the assessment year 1984-85 were out of the past accumulation or not? 2. Whether, on the facts and in the circumstances of the case and also considering the facts and figures reproduced in the enclosure to this reference, the Tribunal is right in law and fact in holding that 'from any angle' the addition of Rs.27,410 cannot be sustained?" The two questions referred relate to the additions made in the assessment of the assessee for the assessment year 1984-85. The addition of Rs.97,950 represents the unexplained investment in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as addition of these two amounts was concerned. In the further appeal before the Tribunal, the assessee furnished certain data in respect of the income assessed in the name of his minor children from 1974-75 onwards. The assessee contended before the Tribunal that the minor children had accumulations during the preceding years, and therefore, they had the source for the investments made during the accounting year, relevant to the assessment year 1984-85. Though it was contended that the children had accumulations, it was conceded before the Tribunal that strict proof could not be produced. Relying on the data fur nished by the assessee before the Tribunal, the Tribunal set aside the assessment and remanded the matter back to the Assessing Officer with a direction to consider the earnings of the assessee's children in the preceding years and to examine whether they have accumulations justifying investments which were treated as unexplained expenditure and the income of the assessee. The Department has questioned this order of the Tribunal by getting the above two questions referred to this court. We have extensively heard counsel for the Department and counsel for the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee's children had accumulated savings to make the investment. The copies of the assessments for earlier years produced before the Tribunal do not establish any carried forward accumulations. Therefore, we feel that the materials produced before the Tribunal also do not justify a remand. We do not also think that the revised assessment issued by the Assessing Officer and produced before us has any significance as we do not find any justification in the investigation ordered by the Tribunal. This finding of ours covers the addition of Rs.97,950, representing unexplained expenditure in the form of investments in the name of the assessee's minor children. The next amount is also on account of the unexplained increase in the wealth of the minor son of the assessee. The Tribunal has ordered investigation of this addition also on the very same basis relevant to the addition of Rs.97,950 for the assessment year 1984-85. Here again the assessee never even ventured to establish a case of source for his minor son to acquire wealth covered by this amount either in assessment or in the first appeal. The only case before the lower authorities was that the children have made a declaration u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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