COMMISSIONER OF INCOME TAX Vs. INDIA CAPACITORS LTD

JUDGEMENT

(1.) This is an application for condonation of delay in making a reference application under Section 256(2) of the Income-tax Act, 1961, within time which expired on January 10, 1987. The case made out by the petitioner is that although the reference application was made ready within time, i.e., by January 8, as the Commissioner had to leave Calcutta for urgent official business on the 8th and the 9th January, 1987, and as he returned to Calcutta on January 10, 1987, the application could not be signed and filed in time as January 11, 1987, was a holiday. It is also stated that there is no other person who is authorised to sign the said application on behalf of the said Commissioner. The said reference application was also noted as made on January 12, 1987. It is the case of the petitioner that as soon as the Commissioner returned to Calcutta on January 12, 1987, the said reference application was made ready, engrossed, affirmed and signed by the Commissioner and thereafter the same was noted as made on that very date.

(2.) It appears that the petition for condonation of delay was affirmed by one Dulal Chandra Mukherjee on March 3, 1987, and a notice of motion was taken out on March 4, 1987, and the application was made returnable on March 12, 1987. On March 12, 1987, directions were given by the court for filing of affidavits and the respondent duly filed its affidavit-in-opposition and the matter came up for hearing on April 8, 1987, when the respondent did not appear at the time of hearing of the said application and it was submitted on behalf of the petitioner that there were only two days' delay in making the said application for reference which should be condoned.

(3.) The said applicant was, however, directed to appear for orders on April 9, 1987. On April 9, 1987, on perusal of the petition, we found that there was no explanation for the delay in making the present application for condonation which was made only on March 12, 1987, and the consequent delay in making the reference application is really up to March 12, 1987, which had not been explained in the petition. By having the reference application noted as made on January 12, 1987, the position is not improved as on that date, the delay was not condoned. Accordingly, we granted time to the petitioner to file a supplementary affidavit to explain such a long delay. A supplementary affidavit affirmed by Duial Chandra Mukherjee has been filed on April 20, 1987. It appears from the said affidavit that on January 20, 1987, the Ministry of Law briefed its counsel to draw up the application for condonation of delay. Learned counsel took time up to February 17, 1987, to draw up the said application and thereafter the draft was sent to the Ministry of Law. The petition was engrossed and sent to the office of the Commissioner for factual verification and signature. The office of the Commissioner returned the engrossed petition duly signed to the Ministry of Law on or about February 19, 1987, with some suggestions for consideration of counsel. Thereafter, the said suggestions along with the said signed petition were sent to learned counsel for his final approval and the same was returned on or about March 2, 1987. The petition was, thereafter, affirmed on March 3, 1987, and the notice of motion was taken out on March 4, 1987.