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TMI Blog1981 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... have been heard together and accordingly for the sake of convenience and as of necessity are being disposed of, by this common order. 2. All the appeals are by the Revenue. ITA Nos. 1300/JP/80, 1302/Jp/80, 1303/JP/80 and 1304/JP/80 were filed in the office of the Tribunal on 11th Sept., 1980 while ITA No 1117/JP/80 was filed on 17th July., 1980. In all the appeals, certified copies of the orders appealed against have not been filed. First four ITAs were filed for hearing on 10th May, 1981 and the ld. Departmental representative was informed of the infirmity viz. that the certified copies of the orders appealed against have not been filed with the appeals ITA No. 1117/JP/80 was filed on 21st May, 1981. All the appeals have been finally hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80. 5. Under sub-s. (3) of s. 253 of the IT Act, 1961, every appeal before the Tribunal is required to be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commr. as the case may be. 6. Rule 47, Statutory, IT Rules, 1962 provide that an appeal to the Tribunal shall be made in Form No. 36. Form No. 36 under statutory r. 47(1) is a statutorily prescribed one, and the notes appended thereto read as under notes: 1. The memorandum of appeal must be in triplicate and should be accompanied by two copies (at least one of which should be certified copy) of the order appealed against and two copies of the relevant order of the ITO. 2. The memorandum of appeal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of the ITO. Under sub-r. (1) of r. 9, the Tribunal may in its discretion accept a memorandum of appeal which is not accompanied by all or any of the document referred to in sub-r. (1). 9. In the cases of the appeals by the Revenue, with which we are presently seized of, no cause has been shown, nor any petition for condonation has been made to warrant or justify the exercise of discretion vested in the Tribunal under sub-r. (1) of r. 9 of the IT (Appl.) Rules, 1963. The ld. Departmental representative having only relied upon the ratio of the decision of the Hon'ble Supreme Court (1973) 91 ITR 83 (SC). In reply to a specified query on the subject matter from the Bench, the ld. Departmental representative stated that the staff was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No. 1117/JP/80 in which case certified copy of the order appealed against had not been filed, is held to be not tenable in law. 12. For the desired fortification, we rely on the ratio of the decision of the Calcutta High Court in the case of New India Construction Co. vs. CIT, West Bengal (1979) 120 ITR 763 (Cal) where their Lordships have held that provision that appeal memorandum should be accompanied by certified copy of the order appealed against is mandatory and case of appeal filed without certified copy of AAC's order and the certified copy having been filed later on but there being no petition for condonation of delay, the appeal has to be treated as barred by time. 13. As regards the ratio of the decision of the Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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