Judgment:
1. These are applications under Section 256(1) of the Income-tax Act, 1961 moved by the Commissioner of Income-tax, Delhi (Central)-II, New Delhi praying that certain questions of law be referred for the opinion of the Hon'ble High Court. The Tribunal's Registry has reported that R.A. No. 979 is barred by 73 days (the correct figure should be 83 days) and the two other applications are barred by 114 days. This office objection was stoutly supported by the assessee-respondent as well.
2. We have heard the learned Departmental Representative and the learned counsel for the assessee and have perused the relevant material. In Reference Application No. 979 arising out of I.T.A. No.3537 the Tribunal's order was delivered at the office of the Chief Commissioner on 22-5-1989 and was received by the CIT, Delhi (Central)-II, New Delhi on 14-8-1989. The Reference Application was presented before the Tribunal on 12-10-1989. According to the Applicant-Commissioner the limitation prescribed under Section 256(1) should count from 14-8-1989 when the copy of the Tribunal's order was received by him; while according to the office objection and the respondent-assessee the limitation should count from 22-5-1989, when the copy of the order was received by the Chief Commissioner.
3. In R.A. Nos. 977 & 978/Del/89, which arise out of I.T.A. Nos. 3556 & 3536 the copy of the Tribunal's order was delivered at the office of the Chief Commissioner on 21-4-1989 and the Applicant-Commissioner, i.e., the Commissioner of Income-tax, Delhi (Central)-II, New Delhi received the same on 14-8-1989. The Reference Applications were filed on 12-10-1989 and, thus, while according to the office objection and the respondent, the said applications are delayed by 114 days, according to the applicant they are within time.
4. Under Section 254(3) as it stands after amendment w.e.f. 1-4-1988 the Appellate Tribunal is obliged to send a copy of any orders passed under this section to the assessee and the Chief Commissioner or Commissioner-. Thus, the Tribunal is under an obligation to send a copy to either the Chief Commissioner or the Commissioner and the Act gives option to the Tribunal to decide for itself whether in compliance of its obligation under Sub-section (3)of Section 254,it shall send the copy to the Chief Commissioner or the Commissioner. Section 256(1) provides that the assessee or the Commissioner may within 60 days of the date upon which he is served with a notice of an order under Section 254, make an application for reference. Therefore, reading Section 254(3) in which the word "send" has been used and Section 256(1) in which the word "served" is used, it would be clear that mere sending or putting in the course of transmission of the copy of an order would not be sufficient and the copy of the order has to be served on the Chief Commissioner or the Commissioner. The question before us in the present matters is whether in compliance with Section 254(3) the Tribunal served the copy of the orders in question on the Chief Commissioner or the Commissioner.
5. In this connection our office records show that the copy of the Tribunal's order in I.T.A. No. 3536, relevant to R.A. Nos. 977 & 978, was forwarded by the Deputy Registrar to the Chief Commissioner of Income-tax vide letter dated 21-4-1989; while the copy of the Tribunal's order in I.T.A. No. 3537 (Del)/86 relevant to R.A. No. 979 was sent to the Chief Commissioner vide letter dated 22-5-1989. Both the letters are identically worded and we, therefore, reproduce below the letter dated 22-5-1989 :- Kindly refer to the above two letters, in compliance with the directions of the President, I am forwarding herewith 58 orders with acknowledgement slip in each case in duplicate.
Kindly be pleased to serve the orders on the respective Commissioner of Income-tax and obtain acknowledgement in each forward the same to this office immediately.
6. The learned counsel for the assessee contended that since under Section 254(3) the Tribunal can send a copy of the order to the Chief Commissioner as well the delivery of the copy of the order at the Chief Commissioner's office would be sufficient compliance of Section 254(3) and limitation would start running from the date on which the copy of the order was so delivered at the Chief Commissioner's office. For this proposition he relied upon an order of this Tribunal in the case of CIT v. Hindustan Vacuum Glass Ltd. [R.A. Nos. 980 to 982 (Delhi) of 1989], in which it has been held that since the amendment of Section 254(3) the delivery of the copy of Tribunal's order at the Chief Commissioner's office is sufficient compliance of Section 254(3) and limitation would start running as soon as the copy of the order is delivered at the Chief Commissioner's office.
7. We have gone through the order carefully and we find that the facts in that case were not made out to be similar to the case before us. It was not brought to the notice of the Bench in that case as to how the order was sent to the Chief Commissioner; while in the present case we have before us the letters addressed by an official of this Tribunal to the Chief Commissioner, with which the copy of the orders were delivered at the office of the Chief Commissioner with the request to serve the same on the Commissioner concerned and obtain acknowledgement slips from the concerned Commissioners and forward the same to the Tribunal. Therefore, the case of Hindustan Vacuum Glass Ltd. (supra) and another case of Hindustan Times Ltd., were decided on their own facts ; while the present case has to be decided in the light of the two letters referred to above. The letter dated 22-5-1989, by which the Tribunal's order in I.T.A. No. 3537 was sent to the Chief Commissioner, came up for consideration before a Bench of this Tribunal in the case of CIT v. Dalmia Dairy Industries Ltd. [R.A. No. 969 (Delhi) of [1989] and the Tribunal observed as under:- 5. No doubt under Section 254(3) as amended with effect from 1-4-1988, the Tribunal has the option of sending a copy of its order either to the Chief Commissioner or Commissioner and limitation for the purposes of Section 256(1) will count from the date on which the copy of the order is delivered to the Chief Commissioner or the Commissioner, to whom the Tribunal intends to send a copy of the order in compliance to Section 254(3) but if as in the case before us, the Tribunal utilises the services of the Chief Commissioner merely as its messenger for passing on the copy of the Tribunal's order to the Commissioner concerned, then the limitation would commence from the date on which the copy of the order is received by the Commissioner. As is evident from the letter reproduced above under a preexisting arrangement contained in the exchange of D.O. letters, the Chief Commissioner was utilized only as the Tribunal's messenger for compliance of the provisions of Section 254(3) by the Tribunal by locating the Commissioner concerned and by delivering the copy of the order to such Commissioner. The Tribunal's intention was to serve the copy of the order on the Commissioner concerned in accordance with Section 254(3) and not to serve the same on the Chief Commissioner. That is why the Deputy Registrar specifically requested the Chief Commissioner of Income-tax to serve the copies of the orders on respective Commissioners and obtain acknowledgements in each case and forward the same to the Tribunal's office. We are, therefore, of the view that the ultimate recipient of the copy of the order, as desired by the Tribunal, was the concerned Commissioner and the Chief Commissioner was merely used as the Tribunal's messenger and, therefore, the delivery of the copy of the order to the Chief Commissioner was not a compliance of the provisions of Section 254(3) but only a step towards such compliance. Therefore, the Chief Commissioner having handed over the copy of the Tribunal's order to the Commissioner concerned on 14-8-1989 the compliance of Section 254(3) was complete only on that day and limitation mentioned in Section 256(1) commenced from that day. Counted from 14-8-1989 the present application is in time and we hold accordingly.
8. We had, at the time of hearing of the present applications, shown to Shri M.S. Syali the learned counsel for the respondent, the letters dated 21-4-1989 and 22-5-1989 and had also informed him of the view taken in the case of Dalmia Dairy Industries. It was contended by him that since there are divergent views the matter should be referred to a larger Bench. In our view, there are no divergent views at all because the views taken in the case of Hindustan Vacuum Glass Ltd. (supra) and Hindustan Times Ltd. (supra) are on their own facts in which it was not shown to the concerned Benches that the Tribunal's orders were sent to the Chief Commissioner with letters of the nature mentioned above requesting him to serve the same on the concerned Commissioners. The Benches that decided those cases, therefore, did not deal with a case like the one before us and there is, therefore, no question of any divergent opinion and no need for making a reference to any larger Bench.
9. We are in agreement with the view taken by the Bench of this Tribunal in the case of Dalmia Dairy Industries Ltd. (supra) and following the reasonings given therein, which have been reproduced above, we hold that limitation in these cases would not count from the date when the copies of the orders were delivered at the office of the Chief Commissioner and would, on the other hand, count from the date when the Chief Commissioner, in compliance with a request contained in the aforesaid letters of the Tribunal, served the copies of the orders on the Commissioner concerned. From such dates admittedly the applications in question are within limitation. We, therefore, over-rule the office objection as well as the objection raised by the assessee-respondent and hold that the applications are within time.