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TMI Blog1986 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... the same is CGT v. Smt. Ranjana Kumari, the same deserves to be rejected. On 11-4-1986 when the learned counsel for the assessee argued at length the assessee's case pertaining to preliminary objection challenging the admission of the reference application and praying that the same be dismissed in limine and he seemed very serious about pressing the same, the objection not being such which is normally raised, he was required to file the written submissions by 30-4-1986 and the learned departmental representative on the revenue's part by 15-5-1986. 2. The learned counsel for the assessee Mr. Bhim Sain filed written submissions in the Tribunal's office on 21-4-1986, a copy of which was given to the learned departmental representative on 23-4-1986 by the registry. The reference application was listed for hearing on 18-7-1986. The learned senior departmental representative Mr. R.K. Bali filed his written submissions only on 17-7-1986, a copy of the same was given to the learned counsel for the assessee. The learned counsel for the assessee at the time of hearing pressed once again that the reference application be dismissed in limine not only due to original three defects that its he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee as preliminary objection, we are of the view that for fairness to both the parties and in the interest of justice, written submissions made by both of them, the assessee and the revenue, be placed here below : "Preliminary objections raised by the learned counsel for the assessee--- The said reference application is incompetent, having been made by an authority who lacked jurisdiction to make the reference application and secondly as the application is not in the prescribed form. 2. A reference to the High Court could be applied for against the order dated 31-10-1985 of the Hon'ble Tribunal by the Commissioner, in terms of section 26 of the Gift-tax Act, 1958. The 'Commissioner' is Commissioner of Gift-tax, vide section 2(vi) read with section 9. The said application has, however, been made by the Commissioner of Income-tax who had no locus standi in the matter. 3. In Madan Lal v. ITAT [1963] 50 ITR 447, wherein an application under section 66(2) of the Indian Income-tax Act the assessee had made the Tribunal a party instead of Commissioner of Income-tax, the High Court of Punjab dismissed the application as a proper party had not been impleaded. 4. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 26 of the said Act requires a reference form being made in the 'prescribed form'. 9. As already noticed in para 4 above, Punjab High Court has ruled that requirements of the section dealing with reference application must be fully satisfied. 10. Privy Council observed in Trustees Corpn. (I) Ltd. v. CIT 4 ITC 378 that 'the High Court will, in future, be well-advised to require before they seek to entertain any questions under section 66 of the Indian Income-tax Act that the preliminary requirements of the section are strictly complied with'. And they added : 'The stringency of these requirements is clearly deliberate. It is the intention of the enactment that the High Court is not to be flooded with such applications.' 11. The High Court of Lahore (Pak.) upheld rejection of an application made by assessee to the Tribunal on the ground inter alia that not being in the prescribed form, the application could not be treated as a memo of appeal vide Dhanpat Mal Diwan Chand v. CIT [1954] 26 ITR 357. The High Court invoked rule 13 of the Income-tax (Appellate Tribunal) Rules, 1963 in India. 12. Madhya Pradesh High Court emphasised in CIT v. Jiwajirao Sugar Co. Ltd. [1969] 71 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of the revenue that section 292B would save the order, the Tribunal remarked that a mistake to fall within the ambit of that section 'is one which happens casually and it should be a mistake, pure and simple'. Thus like section 292B of the Income-tax Act, section 41C of the Gift-tax Act would take care of casual mistake but does not condone casual attitudes. According to Chambers 20th Century Dictionary, 'mistake' means 'a taking or understanding wrongly'. The department with a mighty organisation and staffed with a galaxy of experts could certainly be under no illusion as to the form in which a reference application was to be moved. Use of Form No. 37, therefore, is no mistake. It is likely to be a result of casual attitude to the requirements of the statute and such a situation is not covered by section 41C. If it were to be held otherwise, apart of the statute loses its sanctity and tomorrow an assessee may send a letter to his ITO saying that his income is Rs. 20,000 and claim that that must be regarded as his return; another person may scribble Rs. 20,000 on the form of gift-tax return and say that that is his income-tax return. Public policy is to promote regard and not d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is the Commissioner of income-tax and also the Commissioner of Gift-tax. The necessary change as to the designation has been duly made while signing the reference application. Moreover, the statement of facts attached to the reference application is duly signed by him as Commissioner of Gift-tax. Even otherwise it has been held by the various High Courts that description of appellant is not fatal but only an irregularity which can be amended. The decision of Punjab High Court in Gian Chand Vir Bhan v. CIT [1960] 39 ITR 414 and Patna High Court in Gouri Kumari Devi v. CIT [1959] 37 ITR 220 are relevant on the point. Addl. CIT v. K. Padmalochan Sahu [1974] 95 ITR 113 (Orissa) is another judgment favouring the department. Reply 2--- In this respect, it is submitted that the contents of both the forms are materially the same. The Commissioner of Gift-tax has been approached to sign the application in the proper form meant for the gift-tax reference application and this will be filed very shortly. Kind attention of the Hon'ble Tribunal is invited to the judgments in Behari Lal Laxmi Narain v. ITO [1960] 39 ITR 649 (All.) where it has been held that a petition filed on a wrong for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is distinguishable from the facts of the instant case. In that case reference application under section 66(2) of the Indian Income-tax Act, 1922 was to be filed against the Commissioner of Income-tax but the assessee had named the Tribunal as the sole respondent. In that case, while not condoning the period of limitation, their Lordships held as under : "... that as the only party who should have been named as the respondent was not so named the application originally filed was meaningless, and as no satisfactory explanation was given for the mistake the period of limitation could not be extended." In the instant case, the Commissioner of Income-tax and the Commissioner of Gift-tax is one and the same person Shri Balwant Singh. The mistake, according to us, is not as damaging as it was in the said case of Madan Lal. Coming to another Punjab High Court decision in R.B.L. Banarsi Dass Co. Ltd.'s case, on which reliance was placed by the learned counsel for the assessee, we are of the view that this case does not lend any support to the assessee's contention. In this case, assessment was framed by the ITO at Amritsar whereas appeal to the Tribunal was filed by the ITO at Delhi. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to be flooded with such applications." The form in the instant case is undoubtedly under the Income-tax Act. In the instant case, there is no controversy about the fact that the Tribunal never returned the said reference application to the applicant, as per rule 37 of the Income-tax (Appellate Tribunal) Rules, 1963, which is in respect of procedure under section 256(1) and in which rule 12 of the said Rules with other rules has been made applicable mutatis mutandis and the said rule 12 reads as under : "The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return it for being amended within such time as it may allow. On representation after such amendment, the memorandum shall be signed and dated by the officer competent to make an endorsement under rule 7." Reliance of the learned counsel for the assessee in the case of CIT v. Jiwajirao Sugar Co. Ltd. [1969] 71 ITR 319 (MP) also apparently becomes misplaced. As per the said case, it is held that : Before a reference can be made, there must be an application which is made within the period of limitation prescribed by section 66(1)... the application itself has to be made in the form pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal and was not accompanied by a fee of Rs. 100. In this case, it was held by their Lordships that : "The Tribunal had the discretion to reject the application even if it could be treated as a memorandum of appeal." Instant case is not that of ordinary application. It was an application which was made by the Commissioner of Gift-tax, as duly signed by him, relevant contents pertained to the gift-tax matter but it was mentioned under the Income-tax Act and from the side of the Commissioner of Income-tax. This is clearly distinguishable, according to us. Similarly, in respect of section 41C, our attention was also drawn to the Nagpur Bench decision in the case of Laxmi Bank Ltd. v. Second ITO [1985] 12 ITD 175. In that case, it was held that the order of penalty under section 273(2)(a) of the Income-tax Act could not be sustained when show-cause notice was in respect of section 273(2)(aa). In this case, it was held by the Tribunal that the mistake to be rectified should be casual to fall within the ambit of that section, i.e., section 292B of the Income-tax Act. In the instant case, the learned counsel for the assessee submitted that 'casual' means once in a while but the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is the Commissioner of Gift-tax preferred reference application under the Gift-tax Act, signed it as such with statement of facts, but on the heading of the application it was mentioned Commissioner of Income-tax and also the form was under section 256(1) instead of relevant section under the Gift-tax Act. Even, misdescription on the heading or section could not be fatal to the revenue's case. The Allahabad High Court decision in Behari Lal Laxminarain v. ITO [1960] 39 ITR 649 regarding the prescribed form, also supports the contention of the revenue. In that case, the memo of appeal was found to be defective inasmuch as, it was not in the prescribed form and was not filed in triplicate. It was neither rejected nor returned, but the defects were pointed out to the assessee who rectified the defects and filed a proper memorandum in triplicate subsequently with an application for admission of the appeal. The Tribunal admitted the same and the High Court held that the said appeal was not out of time. In the instant case, the defect was undoubtedly pointed out to the learned senior departmental representative on earlier hearing but as he admitted in the open Court, it was due to h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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