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

Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply communication of a copy of the written order itself, a party who knows about the making of an order cannot ignore the same and allow grass to grow under its feet and do nothing except waiting for a formal communication of the order or to choose a tenuous plea that even though he knew about the order, he was waiting for its formal communication to seek redress against the same in appeal. if a party does not know about the making of the order either actually or constructively it may claim that the period of limitation would start running from the date it acquires knowledge of the making of an order but one cannot understand how a party, who has acquired knowledge of the making an order either directly or constructively can ignore the same and belatedly seek redress just because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order.1. this petition has been filed under section 256(2) of the income-taxact, 1961, for the issuance of a mandamus requiring the tribunal to referthe following question : 'whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal was right in law in allowing weighted deduction under section 35b of the income-tax act, 1961, on the amount of service charges paid to m/s. handicraft handloom export corporation?'2. the question sought to be referred is certainly a question of law. the tribunal, however, declined to refer it on the ground that the same stands concluded by the decjsion of the special bench of the tribunal in the case of j. hemchander and company. on the ground stated, the tribunal was not justified in declining the reference sought for. consequently, this petition is allowed and a mandamus issued to the tribunal to refer the above-noted question together with the statement of the case for the opinion of this court.