Keshava Cashew Company vs Commissioner of Income Tax (Appeals)

K.S. Paripoornan, J.—These are four original petitions filed by the assessees to Income Tax, u/s 256(2) of the Income Tax Act, praying that the Income Tax Appellate Tribunal may be 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 u/s 256(2) of the Income Tax Act are not maintainable. It was submitted that the proper party has not been impleaded as the respondent.

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 Commissioner of Income Tax (Appeals), Ernakulam, Mr. Menon contended that the proper party to be impleaded is the Commissioner of Income Tax, Trivandrum, under whom the Income Tax Officer who made the assessment is functioning as an assessing authority. It should be stated that in the applications filed u/s 256(1) of the Income Tax Act, the assessee had shown the Commissioner of Income Tax, Trivandrum, as the respondent in all the four cases. So also in the certificate of non-withdrawal in all the four cases, the Commissioner of Income Tax, Trivandrum, is shown as the respondent. While so, there is no reason why the Commissioner of Income Tax, Trivandrum, was not impleaded as a respondent in these original petitions. We are unable to discern any reason or basis for impleading the Commissioner of Income Tax (Appeals), Ernakulam, as the respondent. As per Rule 38 of the Income Tax (Appellate Tribunal) Rules, 1963, the Commissioner to whom the Income Tax Officer is subordinate shall be made a respondent. In these four cases, the Income Tax Officer who made the assessments is subordinate to the Commissioner of Income Tax, Trivandrum. This is not disputed. Since proceedings u/s 256(2) of the Income Tax Act is a continuation of Section 256(1) proceedings, the proper person to be impleaded as the respondent in these four cases is the Commissioner of Income Tax, 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 u/s 256(2) of the Income Tax Act without impleading the necessary party as the respondent are not maintainable. We hold so.

Petitioners'' counsel has filed C.M.P. Nos. 14525, 14526, 14527 and 14528 of 1987 praying that this court may be pleased to allow the petitioners to correct the name of the respondent as Commissioner of Income Tax, Trivandrum. The Commissioner of Income Tax, Trivandrum, is altogether a different and new person who is sought to be impleaded. With the Commissioner of Income Tax (Appeals), Ernakulam, as the respondent in these original petitions, these petitions are unsustainable. So, there is no valid petition filed u/s 256(2) of the Income Tax Act. A petition merely to correct the name of the respondent as Commissioner of Income Tax, Trivandrum, will not lie. The Commissioner of Income Tax, Trivandrum, is altogether a new party in these original petitions. These original petitions can be considered to have been properly and validly filed only on the date when the Commissioner of Income Tax, Trivandrum, is impleaded as a respondent in these original petitions. There is no petition to implead the Commissioner of Income Tax, Trivandrum, as a respondent in these original petitions. Even so, when the Commissioner of Income Tax, Trivandrum, is sought to be impleaded as a respondent, the original petitions as against him can be said to have been filed only on the day when the Commissioner of Income Tax, Trivandrum, is impleaded. The time for filing a petition u/s 256(2) of the Income Tax Act is six months from the date of communication of the rejection of an application u/s 256(1) of the Act. The last date for filing such an application with the proper party as a respondent, i.e., the Commissioner of Income Tax, Trivandrum, expired as early as June, 1984. There is a delay of nearly three years. It is after a delay of three years that the present petitions to correct the name of the respondent as Commissioner of Income Tax, Trivandrum, are filed. As against the Commissioner of Income Tax, Trivandrum, if the petitions are filed today, the delay of nearly three years has to be condoned. No petition has been filed in these cases either to implead the Commissioner of Income Tax, Trivandrum, as a respondent or to condone the delay of nearly three years, supported by a proper affidavit. In these circumstances, C.M.P. Nos. 14525, 14526, 14527 and 14528 of 1987 are not maintainable. We are also of the view that no sufficient reason is disclosed in the said petitions either to rectify the cause-title of the respondent or to take out notice to the Commissioner of Income Tax, Trivandrum, as prayed for therein. C.M.P. Nos. 14525, 14526, 14527 and 14528 of 1987 are dismissed.

The above four original petitions are dismissed.