KAMALA DEVI TODI Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS application has been filed by the assessee praying for a direction to refer the following questions under Section 256(2) of the Income-tax Act, 1961 :

(2.) FOR the assessment year 1954-55, Lalchand Todi (since deceased) submitted his return of income in the prescribed form along with copies of trading accounts, profit and loss account and balance-sheet for the financial year ending on November 6, 1953. Notices issued under Section 23(2) of the Act had been complied with by the said deceased through representatives and evidence as required by the Assessing Officer was furnished in the course of the assessment proceedings. Assessment of his income was completed by the Assessing Officer by order dated January 28, 1959, passed under Section 23(3) determining a total loss of Rs. 15,820. The deceased challenged the said order before the Appellate Assistant Commissioner of Income-tax, Guwahati. The appeal was disposed of by the Appellate Assistant Commissioner of Income-tax by order dated March 2, 1960. Meanwhile, after completion of the assessment, the Assessing Officer issued notice dated September 18, 1959, under Section 34 of the Act alleging that he had reason to believe that the income of the deceased had been underassessed. Thereafter, another notice dated October 3, 1959, was issued calling upon the deceased to produce six loan creditors in connection with the assessments for the assessment years 1953-54 and 1954-55 on October 19, 1959. A revised assessment of income of the deceased was completed by the Income-tax Officer, A-Ward, Nowgong, under Section 23(3)/34(1)(a) of the Act read with Section 297(2)(d)(ii) of the Act determining a total income of Rs. 8,63,270. This was challenged by an appeal before the Commissioner of Income-tax (Appeals), Guwahati. The said appeal was disposed of by order dated May 18, 1983. The Commissioner of Income-tax (Appeals) cancelled the revised order of assessment. Against the said order, the Revenue preferred an appeal before the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati. The appeal was barred by limitation by 2,518 days, i.e., more than six and half years. The Revenue filed a written submission dated September 20, 1993, contending that the appeal could not be filed for want of a certified copy of the order. The petitioner submitted that the evidence of application for certified copy had not been produced and the appeal was delayed hopelessly in gross negligence on the part of the Revenue and, as such, the delay should not be condoned. The Tribunal, however, condoned the delay, reversed the order of the Commissioner of Income-tax (Appeals) and upheld the proceedings under Section 34(1)(a). The petitioner, thereafter, filed an application under Section 254 of the Act before the Tribunal. By order dated December 20, 1994, the Tribunal disposed of the said application and recalled its earlier order dated September 24, 1993, for consideration and directed the registry to post the case for hearing. The petitioner also filed a reference application under Section 256(1) of the Act praying for referring the above questions for opinion of this court. By order dated December 20, 1994, the Tribunal rejected the said application as being infructuous. Hence, the present application.

(3.) IN view of the above, we find nothing wrong in the orders dated December 20, 1994. Therefore, the question of giving a direction to the Tribunal to refer those questions does not arise. Accordingly, this petition is dismissed.