KESAVA CASHEW CO Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THESE are four original petitions filed by the assessees to income-tax, under s. 256(2) of the IT Act, praying that the Tribunal maybe directed to refer certain questions of law arising out of the appellate order for the decision of this Court. Original Petitions Nos. 7005 and 7219 of 1984-S are filed by the same assessee and Original Petitions Nos. 7006 and 7363 of 1984-S are filed by a different assessee. When the original petitions were taken up for hearing, Mr. P. K. R. Menon, counsel for the respondent, contended that these original petitions filed under s. 256(2) of the IT Act are not maintainable. It was submitted that the proper party has not been impleaded as the respondent.

(2.) WE heard counsel for the petitioners, Mr. Panicker, as also counsel for the respondent, Mr. P. K. R Menon. In all these four original petitions, the respondent impleaded is the CIT (A), Ernakulam. Mr. Menon contended that the proper party to be impleaded is the CIT, Trivandrum, under whom the ITO who made the assessment is functioning as an assessing authority. It should be stated that in the applications filed under s. 256(1) of the IT Act, the assessee had shown the CIT, Trivandrum, as the respondent in all the four cases. So also in the certificate of non-withdrawal in all the four cases, the CIT, Trivandrum, is shown as the respondent. While so, there is no reason why the CIT, Trivandrum, was not impleaded as a respondent in these original petitions. We are unable to discern any reason or basis for impleading the CIT (A), Ernakulam, as the respondent. As per r. 38 of the IT (Tribunal) Rules, 1963, the CIT to whom the ITO is subordinate shall be made a respondent. In these four cases, the ITO who made the assessments is subordinate to the CIT, Trivandrum. This is not disputed. Since proceedings under s. 256(2) of the IT Act is a continuation of s. 256(1) proceedings, the proper person to be impleaded as the respondent in these four cases is the CIT, Trivandrum. In this view of the matter, the objection taken by Mr. Menon, counsel for the respondent, that the proper party has not been impleaded as respondent in these original petitions, is well-founded. On this short ground, these original petitions filed under s. 256(2) of the IT Act without impleading the necessary party as the respondent are not maintainable. We hold so.

(3.) THE above four original petitions are dismissed.