COMMISSIONER OF GIFT TAX Vs. BIRESWAR SARKAR

JUDGEMENT

(1.) The two appellants, namely commissioner of Gift Tax, and Gift Tax Officer, have come up in appeal against a judgment delivered on 7th April, 1993 in matter No. 539 of 1988 by a learned single Judge of this court regarding the validity of a notice issued under section 16 of the Gift Tax Act, 1958. It appears that respondent Bireswar Sarkar feeling aggrieved of the issuance of a notice under section 16 of the Gift Tax Act for the assessment year 1982-83 moved a writ application under Article 226 of the Constitution of India in this court. Vide judgment dated 7th April, 1993 a learned single judge of this court by allowing the writ application of respondent quashed and set aside the impugned notice in the writ application. Even though the judgment under appeal was passed on 7th April, 1993, the present appeal was filed on 11.09.95. As per the noting and report submitted by the Superintendent, appeals section (Original Side) of this court, the appeal is barred by limitation by 856 days.

(2.) The contention of the appellant is that the appeal is not barred by limitation because till date no order has been drawn-up as is required in terms of Rules 1 and 2 contained in Ch. XVI of the High Court Rules dealing with Original Side. It is cantented that unless the order has been drawn up in terms of Rules 1 & 2 (supra), appeal cannot be filed because the appeal is to be filed against the order so drawn up and the copy of the order is required to accompany the memorandum of appeal. The point for our determination therefore in this appeal is as to whether an appeal against a judgment delivered by a learned single Judge of this court under clause 15 of the Letters Patent is maintainable only against the judgment itself, and not the order that may be required to be drawn up in terms of Rules 1 and 2 (supra) and thus is such an appeal maintainable without the memorandum of appeal being accompanied by a copy of such an order.

(3.) We have heard learned counsel appearing for the parties at length.