Malayalam Plantations Ltd. Vs. Commissioner of Income-tax, Mysore, Travancore-cochIn and Coorg. - Court Judgment

KUMARA PILLAI, J. - This reference, under their Income-tax Act, arises out of two assessments made on the Malayalam Plantations Ltd., Quilon, for the Malabar years 1122 and 1124 under the Travancore Income-tax Act. Against those assessments, the assessee, the Malayalam Plantation Ltd., m preferred two appeals to the Appellate Assistant Commissioner of Income-tax, Trivandrum, Income-tax Appeals No. 443 of 1124 against the assessment for 1122 and Income-tax Appeal No. 975 of 1124 against the assessment for 1124. Both these appeals were disposed of by the Appellate Assistant Commissioner on August 30, 1952. Against the orders passed by him on that date the assessee preferred two appeals to the Income-tax Appellate Tribunal, Madras Bench B.I.T. Appeals Nos. 5007 and 5008 of 1952-53. These appeals were filed on November 21, 1952. The Appellate Tribunal dismissed both of them on the ground that they were time-barred, that is, that they were filed after sixty days from the date of the communication of the Appellate Assistant Commissioners order to the assessee. The position which the assessee took up before the Appellate Tribunal was that the appeals were not time-bared, But by way of abundant caution the assessee had also filed two petitions for condoning the delay, if the Tribunal was of the opinion that there was delay in filing the appeals. These applications for condoning the delay were also dismissed by the Appellate Tribunal. Then the assessee applied for a reference to this court. The Appellate Tribunal granted the application and has referred to this court the following question, namely :

'Whether the appeals for assessment years 1122 and 1124 M.E. have been filed before the Appellate Tribunal in time having due regard to sections 45 and 115 of the Travancore Income-tax Act and the rules framed by the Appellate Tribunal in this regard ?'

Section 45 of the Travancore Income-tax Act corresponds to section 33(1) of the Indian Income-tax Act, and provides :

'Any assessee objecting to an order passed by an Appellate Assistant Commissioner under section 41 or section 44 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him.'

Section 115 of the Travancore Income-tax Act corresponds to section 67A of the Indian Income-tax Act, and provides that section 12 of the Travancore Limitation Act shall apply in computing the period of limitation prescribed for an appeal under that Act : and section 12 of the Travancore Limitation Act provides :

'12. (1) In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded.

(2) In computing the period of limitation prescribed for an appeal, an application for leave to appeal as a pauper and an application for a review of judgment, the day on which the judgment complained of was pronounced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be reviewed, the time requisite for obtaining a copy of the judgment on which it is founded shall also be excluded.

(4) In computing the period of limitation prescribed for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

(5) In computing the period of limitation prescribed for an appeal, the time during which an application for review of judgment presented before the expiration of the time allowed for appeal was pending, shall also be excluded. The day on which the application for review wads presented and the day on which it was disposed of shall be taken as part of such time.'

The Appellate Assistant Commissioners order dated August 30, 1952, disposing of the appeals Nos. 443 and 975 of 1124 were communicated to the assessee on September 8, 1952. The assessee then applied for certified copies of the orders on September 24, 1952, and the assessee received the certified copies in pursuance of those applications on October 23, 1952. The intimation of September 8, 1952, was given by the Appellate Assistant Commissioner by forwarding to the assessee three copies of his orders of August 30, 1952, in the two appeals, Income-tax Appeals Nos. 443 and 975 of 1124. The position taken by the Appellate Tribunal was that the appeals before the Tribunal should have been preferred by the assessee with the aid of the free copies, that is to say, that the free copies supplied to the assessee by the Department should have been made use of for the production of the certified copies made necessary by rule 10 of the Appellate Tribunal Rules, 1946, which says :

'Every memorandum of appeal shall be in triplicate and shall be accompanied by two copies (at least one of which shall be a certified copy) of the order appealed against and two copies of the order of the order of the Income-tax Officer.'

The assessees contention is that the copy which has to be produced along with the appeal, under rule 10, is the copy that it has to apply for and get from the Appellate Assistant Commissioner on payment of the necessary fees, under section 76 of the Evidence Act, and that the time taken for obtaining that copy has to be excluded in computing the time for the appeal under section 115 of the Travancore Income-tax Act corresponding to section 67A of the Indian Income-tax Act.

The learned counsel for the Income-tax Department conceded before us that if we were of the opinion that the assessee was entitled to exclude the time taken for obtaining the certified copies of the orders from the Appellate Assistant Commissioner the two appeals filed before the Tribunal would be in time. But his contention was that the assessee was not entitled to exclude such time and that the assessee should have preferred the appeals with the help of the free copy supplied to him by the Department.

This question has come up for consideration in the Madras High Court in Rasipuram Union Motor Service v. Commissioner of Income-tax. In that case section 33(1) of the Indian Income-tax Act (corresponding to section 45 of the Travancore Income-tax Act), section 67A of the Indian Income-tax Act, (corresponding to section 115 of the Travancore Act), and rule 10(1) of the Income-tax Appellate Tribunal Rules, 1946, have been considered; and it has been held that before a memorandum of appeal can be validly presented before the Tribunal the assessee has to produce along with the memorandum of appeal a certified copy of the order of the Appellate Assistant Commissioner against which the assessee preferred the appeal, that it is the copy of the order passed on appeal by the Appellate Assistant Commissioner furnished to the assessee on his application - that is, the certified copy of the order under section 76 of the Evidence Act - and not the free copy given to the assessee as required by section 33(1) of the Income-tax Act (Indian) even though both are copies of the same order, and that the period of limitation prescribed by section 33(1) of the Act is governed by section 67A of the Act and if a certified copy is produced the requisite time taken to obtain that certified copy actually produced in compliance with rule 10(1) will stand excluded under section 67A in computing the period of limitation prescribed by section 33(1). There is also an earlier decision of the Calcutta High Court to the same effect, namely, Ruby General Insurance Company Ltd., In re. In that case also the Department contended that the free copy supplied to the assessee by the Appellate Assistant Commissioner under section 33(1) of the Act should have been made use of for preferring the appeal and that the time taken for obtaining a certified copy under section 76 of the Evidence Act could not therefore be excluded in computing the time for filing the appeal. A Division Bench of the Calcutta High Court held that the copy to be produced along with the memorandum of appeal before the Tribunal was the certified copy granted under section 76 of the Evidence Act and not the free copy supplied by the Department and that, therefore, the time taken for obtaining the certified copy has to be excluded in computing the time for appeal.

No doubt, a free copy is also certified as correct by the Appellate Assistant Commissioner. But, by long usage, the term 'certified copy' has obtained a special meaning in view of the provision in section 76 of the Evidence Act; and that term, when used in connection with an appeal and with reference to the order against which the appeal is filed, has always been understood as the copy which the party preferring the appeal obtains under section 76 of the Evidence Act on payment of the necessary fee. Section 76 of the Evidence Act enacts :

'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 a certificate written at the foot of such copy that it is true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.'

The word underlined by us show that the Legislature has given a special meaning to the expression 'certified copies'. We, therefore, respectfully agree with the opinion expressed in the Madras and Calcutta cases referred to above and hold that the assessee was entitled under section 115 of the Travancore Income-tax Act (corresponding to section 67A of the Indian Income-tax Act) to exclude the time taken for obtaining the certified copies after the intimation received by him of the Appellate Assistant Commissioners orders.

It follows that the two appeals, Nos. 5007 and 5008 of 1952-53, were preferred in time band that the Appellate Tribunal was wrong in dismissing them as time-barred. The question referred is answered accordingly, in favour of the assessee and against the Department. As the assessee has succeeded in the reference the Department will pay its costs including an advocates fee of Rs. 150.

Reference answered accordingly.