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TMI Blog1984 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... osed as annexure P-2. A copy of the order of the Tribunal in second appeal is purported to have been enclosed as annexure P-3. A copy of the order of the Tribunal declining to refer the question of law is purported to have been enclosed as annexure P-4. It is also averred that the Tribunal in its order dated April 12, 1982, served on the petitioner on May 17, 1982, declined to refer the question of law. The petition was filed on November 16, 1982. A petition to the High Court under sub-section (2) of section 256 for an order requiring the Tribunal to state a case and refer it to the High Court has to be made within six months from the date on which the petitioner is served with notice of refusal by the Tribunal to state case. Admittedly, the petition has been filed within prescribed limitation. The petition was scrutinised and examined by the registry of the court. A Deputy Registrar of this court is authorised to return for amendment, within a time to be specified in an order to be recorded by him on the petition, any petition not drawn up in conformity with the directions, orders or the law. The Deputy Registrar found that annexures P-1 to P-4 purported to have been attached wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee or the Commissioner. The assessee or the Commissioner who desires to have a case stated and referred to the High Court may apply to the Tribunal under sub-section (1) of section 256 in the prescribed form. Rules 36 to 47 of the Income-tax (Appellate Tribunal) Rules, 1963, deal with the applications for reference under section 256(1). Rule 36 provides that an application for reference under sub-section (1) of section 256 shall be in triplicate and shall be accompanied by a list of documents (particulars of which shall be stated) which in the opinion of the applicant should form part of the case, and a translation in English of any such documents, where necessary. The contents of and the procedure to be followed in a petition under section 256(2) of the Act to be made to the High Court is not provided in those rules. The contents of the petition and the procedure is regulated by special rules made by different High Courts for the purpose. Rules and Orders have been made by the Punjab High Court which are applicable to the High Court of Delhi. Relevant rules are contained in Chapter VII-B read with Chapter I of the High Court Rules and Orders, Volume V. Rule 1 of Chapter VII- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h orders of the Income-tax Officer and the Tribunal as may be necessary for understanding the point or points of law on which the reference is desired, the Deputy Registrar is authorised to return for amendment if the petition is not drawn up in conformity with the directions. The power is further conferred to specify a time within which the petition should be re-filed. This is exactly what has been done by the Joint Registrar in this case. Counsel for the Revenue has raised a contention that the rules regarding applications and references contained in Chapter VII-B were made by the Punjab High Court under clause 27 of the Letters Patent to regulate proceedings of applications and references under sections 66(2) and 66(3) of the Indian Income-tax Act, 1922, as amended by the Income-tax (Amendment) Act 7 of 1937 and 40-X of 1940. No rules have been made for petitions under section 256(2) of the Act. By section 297(1) of the Act, the Indian Income-tax Act, 1922, has been repealed. Subsection (2) of section 297 contains the savings but, says the counsel, it does not save the rules made by the High Court under clause 27 of the Letters Patent. Clause (k) of sub-section (2) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 256(2) of the Act does not lay down any such requirement of filing the copies. The requirement is by our own rules or practice and procedure. As the object for the copies of documents to accompany the petition is to understand the points of law on which a reference is desired, then it cannot be mandatory.. The petition may itself contain a verbatim narration of the orders or even a gist to understand the points raised. The copies can be filed later before the High Court takes up the petition if the narration is insufficient or incomplete. The scheme and object of the provision is to enable the High Court to come to a conclusion whether any question of law arises or not and this can be achieved by merely filing the orders of the Tribunal alone. The copies of the orders of the Income-tax Officer or the Commissioner of Income-tax (Appeals) may not be filed. If the same need not be filed, then the provision cannot be treated as mandatory. The mere use of the word " shall " does not suggest the imperative. Article 320(3) of the Constitution says that the Public Service Commission " shall " be consulted on all disciplinary matters and it has been held by the Supreme Court in State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o orders of the Tribunal. In our view, the re-presentation is only a continuation of the original petition and does not affect the question of limitation in filing the petition. The plaints of suits are sometimes returned for removal of defects and representation. The consensus of judicial opinion is that the re-presented plaint is a continuation of the former suit and it is not necessary for plaintiff to fall back on section 14 of the Limitation Act. When a plaint after removing the defect or even reducing the jurisdictional value is represented to the same court on the date on which the new suit would be barred by limitation, the courts have treated the same as a continuation of the previous suit. The defective appeals or petitions are also similarly returned for removal of defects and re-presentation within the time specified. We can take judicial notice of the practice followed in this court that the specified period is never rigidly insisted upon by the registry. The opposite parties or their counsel have seldom raised an objection of non-representation within the specified period. It is only when the re-presentation is unreasonably delayed that an objection is raised by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ster and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day's delay. These and similar considerations which influence the decision of section 5 applications are out of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of section 5, Limitation Act, or of rule 4, Chapter 1, of the High Court Rules. If the Division Bench were aware that rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it in apposite to consider whether the delay caused in filing the appeal could be condoned. " We have considered the facts of this case. The expression " sufficient cause " should receive a very liberal construction in an application for condonation of delay in re-filing the petition. There are no ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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