Bafna Brothers Vs. Commissioner of Income-tax - Court Judgment

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direct taxation - prescribed period - sections 253, 268, 269f, 269g and 269h of income tax act, 1961 - appellant transferee of property in respect of which proceedings have been taken - against order of competent authority appellant preferred appeal before tribunal - appeal dismissed on ground that it is filed beyond prescribed time - in special appeal appellant contended that statutory rules require to enclose certified copy along with memo of appeal - time taken in getting certified copy is to be excluded from prescribed period - rejection of appeal as time barred is improper - held, tribunal directed to admit appeal and dispose it expeditiously. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - but, in such a situation, we are justified in adopting the meaning to the said expression in the indian evidence act, 1872. the evidence act applies to the appellate tribunal as well, which would be evident from the definition of 'court' in section 3 of the evidence act.jeevan reddy, j.1. this special appeal has been preferred under section 269h of the income-tax act. the appellant is the transferee of property in respect of which proceedings have been taken under chapter xxa of the income-tax act, 1961. against the order of the competent authority, the appellant preferred an appeal before the income-tax appellate tribunal under section 269g. the appeal was entertained and notice was given to the department. at the hearing of the appeal, a preliminary objection was raised on behalf of the department that the appeal itself is time-barred and must be rejected in limine on that ground itself. the tribunal heard both the parties on this question and upholding the objection taken by the department dismissed the appeal as time-barred, without going into the merits of the appeal. in this appeal, the correctness of the view taken by the tribunal is questioned. an appeal to the tribunal is provided by sub-section (1) of section 269g which reads as follows : 'appeal against order for acquisition - (1) an appeal may be preferred to the appellate tribunal against the order for the acquisition of any immovable property made by the competent authority under section 269f, - (a) by the transferor or the transferee or any other person referred to in sub-section (8) of that section, within a period of forty-five days from the date of such order or a period of thirty days from the date of service of a copy of the order on such person under the said sub-section, whichever period expires later; (b) by any other person interested in such immovable property, within forty-five days from the date of such order : provided that the appellate tribunal may, on an application made in this behalf before the expiry of the said period of forty-five days or, as the case may be, thirty days, permit, by order, the appeal to be presented within such further period as may be specified therein if the applicant satisfies the appellate tribunal that he has sufficient cause for not being able to present the appeal within the said period of forty-five days or, as the case may be, thirty days.' if we read this sub-section in isolation, it would appear that the appeal can be filed either within forty-five days from the date of the order or within thirty days of the service of the copy of the order, whichever is later. (we are not concerned with a case arising under clause (b)). in other words, where a copy is served upon the appellant, he can file an appeal either within thirty days of such service or within forty-five days of the date of the order, whichever is later. but where a copy of the order is not served upon him, then necessarily the appellant has to apply for a certified copy and then alone can he prefer the appeal. in the latter eventuality, the time taken for supplying the certified copy must necessarily be excluded, because the appellant cannot be reasonably expected to file an appeal without knowing the contents and the reasoning of the order. in the case before us, it is admitted that the appeal preferred is beyond thirty days from the date of service of the order and also beyond forty-five days from the date of the order. the appellant is, however, seeking to take refuge under note 1 to form no. 37f prescribed under rule 48f of the income-tax rules, 1962. part xb containing rules 48d to 48h was inserted by an amendment with effect from november 15, 1973. part xb carried the heading 'acquisition of immovable properties under chapter xx-a'. rule 48f says : 'an appeal under section 269g to the appellate tribunal shall be in form no. 37f and the form of appeal, the grounds of appeal and the form of verification appended thereto shall be signed by the person specified in sub-rule (2) of rule 45.' now, coming to form no. 37f prescribed by the said rule, note 1 reads as follows : 'the memorandum of appeal must be in triplicate and should be accompanied by two copies (at least one of which should be a certified copy) of the order appealed against.' the contention of the appellant is that inasmuch as the statutory rules require him to enclose a certified copy along with his memo of appeal, he had applied for a certified copy and presented the appeal along with the certified copy and hence the time taken for supplying the certified copy should be excluded. we are of the opinion that section 269g(1) should be read along with rule 48f and form no. 37f and if so read, it would follow that an appeal to the appellate tribunal should necessarily be accompanied by at least one certified copy. it is true that the expression 'certified copy' is not defined either in chapter xx-a or in part xb of the income-tax rules. but, in such a situation, we are justified in adopting the meaning to the said expression in the indian evidence act, 1872. the evidence act applies to the appellate tribunal as well, which would be evident from the definition of 'court' in section 3 of the evidence act. it reads : ''court' includes all judges and magistrates and all persons, except arbitrators, legally authorised to take evidence.' section 1 of the evidence act says that the act applies to all judicial proceedings in or before any court. the grant of 'certified copy' is provided for by section 76 of the evidence act, which says that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with the necessary certificate certifying that it is a true copy. once we hold that an appeal preferred under section 269g should necessarily be accompanied by a certified copy, it would be reasonable to hold that the time taken for obtaining such certified copy, i.e., the period between the date of application and the date of furnishing of the copy must be excluded. if the said period is excluded, the appeal preferred by the appellant before the appellate tribunal under section 269g(1) would be within the period of limitation. learned standing counsel for the revenue, mr. m. s. n. murthy, however, contended that where a copy is communicated, it is not necessary for the party to apply for a 'certified copy', since he can file the appeal along with the copy communicated to him. reliance is placed upon section 268 of the income-tax act. we are, however, of the opinion that section 268 or the principle thereof cannot be extended to an appeal filed under section 269g(1) for the simple reason that the said sub-section has to be read along with the statutory rules and the form referred to above, which make the certified copy obligatory. section 268 no doubt would apply to appeals preferred under chapter xx and there the contention urged by standing counsel would be applicable and relevant, but not in the case of section 269g(1). we may also note that chapter xx-a appears to be a self-contained chapter. unlike section 253, section 269g does not empower the tribunal to condone the delay, if any, in filing the appeal. it only provides for a party applying to the tribunal within the period of forty-five days, for extension of time for filing the appeal. this is a totally different and distinct provision from the one contained under sub-section (5) of section 253, which expressly empowers the tribunal to condone the delay in filing the appeal for sufficient reason. we may also notice in this connection that chapter xx-a has been deleted altogether by the finance act of 1986. we wish to make it clear that if an appeal is preferred either enclosing the copy served on the party or without such a copy, it would still be a proper presentation. in such cases, the tribunal may call upon the appellant to file the certified copy within a time prescribed by it. for the above reasons, we hold that the appellate tribunal was not right in holding that the appeal preferred by the appellant herein was barred by time. the tribunal is directed to admit the appeal and dispose of it on merits as expeditiously as possible. the appeal is accordingly allowed, but in the circumstances, without costs.