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TMI Blog1996 (12) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... tent of the addition of Rs. 4,28,713. It is thereafter the abovesaid two T. C. M. Ps. were filed before this court under section 151, Civil Procedure Code, to condone the delay of 77 days in filing the restoration petition as well as for setting aside the order of dismissal in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood [1997] 228 ITR 113), dated August 8, 1996, and to restore the reference for rehearing. These two T. C. M. Ps. were filed by a counsel, who has not entered appearance on behalf of the assessee in T. C. No. 1117 of 1984 (CIT v. K. T. M. S. Mohamood [1997] 228 ITR 113). The petitioner in the abovesaid two T. C. M. Ps. submitted that originally N. C. Ananthachari and N. C. Rangesh, Advocates, were appearing on behalf of the assessee in the tax case. Mr. N. C. Ananthachari left the practice and Mr. N. C. Rangesh went abroad and settled there. The petitioner/assessee came to know about the result in the tax case through a letter written by an advocate, Mr. K. C. Rajappa, who was engaged in a writ petition filed by the petitioner herein, which advocate was said to be engaged by N. C. Ananthachari and N. C. Rangesh, Advocates. It is thereafter the petitioner moved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the list on more than one occasion and since on August 7, 1996, when counsel for the respondent therein/assessee were not present, the matter was posted in the list on August 8, 1996, under the caption "for orders". Learned senior standing counsel further submitted that the assessee was diligent enough to engage a fresh counsel in a writ petition filed by him when the earlier counsel, who were engaged by him, were not in a position to appear in his case. The assessee could have shown the same diligence in the tax case also by engaging another counsel when he came to know that his earlier counsel were not in a position to appear for him. Learned senior standing counsel also submitted that in a tax case there is no question of dismissing the tax case. The result would be either answering the question or returning the question unanswered. Therefore, filing of the petition under section 151 of the Code of Civil Procedure to set aside the order passed by this court in a tax case is not competent. Therefore, according to learned senior standing counsel, when this court was exercising its advisory jurisdiction in giving opinion over the question referred to it in a tax case under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in default of the appearance of the assessee, the said reference will be heard and determined in his absence. It is also significant to note that the Limitation Act, 1963, will not be applicable in filing the tax cases. If the Limitation Act is applicable then we have got to see whether there is any reasonable cause for condoning the delay. Inasmuch as the Limitation Act is not applicable to tax case reference, further probe into this matter does not arise. Under section 256 of the Income-tax Act, 1961, this court is functioning with advisory jurisdiction in giving its opinion on the question referred to it. Therefore, dismissal of a tax case does not arise in this case. This court under section 256 of the Income-tax Act, 1961, can either answer the question referred to it or return the question unanswered. Under such circumstances, setting aside the order of dismissal in a tax case under section 151, Civil Procedure Code, is also not in accordance with the provisions contained in the Income-tax Act, 1961. According to the assessee, the Supreme Court permitted him to move this court for appropriate orders to rehear the reference. A perusal of the order passed by the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is not possible under the provisions of the Income-tax Act, 1961. Even in the abovesaid decision, the Supreme Court pointed out that there is nothing in any of the provisions of the Indian Income-tax Act, 1922, which either expressly or by necessary implication stands in the way of the High Court from passing an order for disposal of the reference on the merits. Further, in the present case, the tax case was filed by the Department and the Department was ready on the date of hearing to argue its case. In such circumstances, this court cannot prevent the Department from arguing its case while counsel for the assessee was not present even though the tax case appeared in the monthly list and was finally posted for orders on August 8, 1996. Therefore, the decision rendered in Jaipur Mineral Development Syndicate v. CIT [1977] 106 ITR 653 (SC) would render no assistance to the assessee for seeking the relief of recalling of the order passed on August 8, 1996. Learned counsel appearing for the assessee also relied upon the decision of the Supreme Court in CIT v. Bansi Dhar and Sons [1986] 157 ITR 665, wherein the Supreme Court held as under : " It has to be borne in mind that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalling the order passed by this court in the tax case on the merits does not arise, since such a power can be said to be neither incidental nor ancillary. Therefore, this decision also would not be applicable to the facts arising in the present case. Reliance was also placed upon the Full Bench decision of the Kerala High Court in K. Ahamad v. CIT [1974] 96 ITR 29, wherein the Kerala High Court held as under : that in the answer to the reference, it was held that, in the circumstances of the case, for the year of assessment 1963-64, the Explanation was applicable, That was all that was meant and said. But, unfortunately, a sentence had crept in due to an accidental slip or omission or carelessness which had given rise to much trouble subsequently. It was not decided that the assessee was liable to be penalised. The court never dealt with the question as to whether, as required by the Explanation to the section, extenuating circumstances existed or whether they were sufficient. In those circumstances, the interpretation placed on the sentence was thoroughly unjustified, and the position had to be clarified. The sentence must disappear from the judgment in the interest of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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