' Gut MUHAMMAD KHAN, J.-This is a reference application under section 66 (1) of the Income-tax Act praying that this Court may be pleased to give its opinion with regard to the following question of law: "Whether on facts and in the circumstances of the case, the Tribunal was justified to hold that the limitation should start from the date when a copy of the assessment order which is certified in the manner held by the Tribunal, is communicated to the assessee?"
' It arises out of an order dated 31st December 1971 of the Income-tax Appellate Tribunal, Peshawar Bench, Camp at Rawalpindi (hereinafter called the Tribunal).
2. The assessee is a limited Company in which the Government has the controlling shares. The return of income filed by the assessee was processed by the Income-tax Officer vide his order dated 30th June 1971. A notice of demand was served on the respondent-assessee on 3rd July 1971.
It is stated that a copy of the order attested by a clerk was also sent alongwith it. The respondent, however, applied on 31st July 1971, for a certified copy to be attached with an appeal as provided under rule 10 of the Appellate Tribunal Rules, 1948 (hereinafter called the Rules). It is stated that as the copy was not received for about a month, the respondent filed an appeal on 31st August 1971, so that the same was within the time provided under section 30 of the Income-tax Act.
3. During the hearing of the appeal, the petitioner had raised a preliminary objection before the Tribunal that the appeal was barred by time and be dismissed. The contention raised was that as a copy of the order of the Income-tax Officer had been served on the respondent alongwith the demand notice on 3rd July 1971, the appeal ought to have been filed within 30 days thereof.
4. The learned counsel for the assessee admitted the receipt of the demand notice on 3rd July 1971, but contended that it was not accompanied by a certified copy of the assessment order.
According to him the copy of the order sent alongwith the demand notice was stamped and initialed by a clerk whereas the assessee needed a certified copy for the purpose in view of rule 10 of the Rules. He further stated that though the respondent had paid the necessary fee of Rs, 6 for the supply of the certified copy on 31st July 19-1, the same had never been supplied. It was argued on behalf of the respondent that though the time had not run out, yet the appeal had been filed as a matter of abundant precaution on 31st August 1971, without further awaiting the certified copy to be placed on record.
5. The Tribunal came to the conclusion that it was the duty of the Income-tax Officer, in the ordinary course of his official duty, to have supplied a certified copy and not the clerk who might have been authorised for the purpose. The Tribunal also came to the conclusion that the copy supplied to the assessee was not a certified copy as it did not bear the required certificate to the effect that it was a true copy of the original. It also found that the cause of delay was genuine and in view of the confusion about the proper interpretation of the requirements of the Rules it condoned the delay to admit the appeal. In fact the Tribunal decided the appeal on the same date.
6. It is contended by the learned counsel for the petitioner that as the Evidence Act does not apply to the proceedings under the Income-tax Act the question of importing the connotation of the term 'certified copy' from that Act was not legal and that the copy attested by a clerk of the Department should have been considered to be a certified copy in the parlance of rule 10 of the Rules. Reliance was placed on the practice of the Department as well as on Suraj Narain v. Seth Jhabbu Lal (1) in support of the plea. The relevant observations of the Court are as under : "In section 76, Evidence Act, a particular form of certificate is prescribed but that form is not necessary in every case. All that is required by section 65 is that it must be a true copy of the original and there must be something to denote that it was so. In different departments a different set of rules are provided for that purpose. In the civil Courts, for instance, a mere endorsement that it was a true copy signed by an authorised officer is sufficient. Having that purpose in view, it seems to me that these copies can be called certified copies because they bear the seal of the Income- tax Department and bear an endorsement that they were duly copied and compared. It is not known as to who actually signed this endorsement but I think it may fairly be presumed that the endorsement was signed by the persons who were authorized."
7. The learned counsel for the respondent submitted that rule 10 of the Appellate Tribunal Rules contained a mandatory requirement that a certified copy of the order appealed against should be filed. According to him the term `certified copy' was a technical term as known to law and the lawyers and that it meant that the copy should have been supplied to an applicant against prescribed fee and must at least show on the face of it, under a certificate, that it was a true copy of the original on the record. It was contended that even though the Evidence Act was not applicable the term 'certified copy' must be in accordance with those provisions.
8. The question being raised has already received the attention of various Courts. But before going into that we may attend to the objection of the learned counsel about the applicability of the Evidence Act. It is correct that the Evidence Act is not applicable to the proceedings under the Income-tax Act as held by a Full Bench of this Court in Gurmukh Single v. Commissioner of Income- tax (2). We also find certain references expressly excluding its application in some cases. .Section 54 of the Income-tax Act forbids any public servant to disclose particulars contained in any statement made, return furnished or accounts or documents produced under the Income-tax Act or in any evidence given or affidavit or deposition made in the course of any proceedings etc. Etc. Further notwithstanding anything contained in the Evidence Act, 1872, no Court is entitled, save as provided in the Income tax Act, to require any public servant to produce before it any such return, accounts, documents or record or any part of any such record or to give evidence before it in respect thereof.
9. The above restrictions are subject to the Income-tax Act. Section 30 read with rule 10 of the Rules requires of an assessee to file a certified copy of the order complained against alongwith the memorandum of appeal. Section 67/A permits the appellant to get excluded the time requisite for obtaining copies required to be filed alongwith the appeal. According to the High Court Rules and Orders, an applicant for a reference has to file copies of certain other documents also. There is no restriction against the (1) AIR 1944 All. 114 (2) AIR 1944 Lab. 353 assessee in the Income-tax Act to inspect his record. The assessee is, therefore, entitled to inspect his record and consequently ask for a certified copy of the same.
10. The next question is what is meant by a certified copy? It can be interpreted either as a technical term known to law or according to its ordinary meaning. According to section 76 of the Evidence Act, a certified copy is a true copy of a public document given by a public officer having custody of that document on payment of the legal fee therefor together with a certificate written at the foot of such copy that it is a true copy of the document. The certificate must be dated and subscribed by such officer with his name, official title and sealed if so authorised. The ordinary meaning of the certified copy cannot be different. The document which is stated to be a copy of another document must bear a certificate of the custodian of that document vouching for its being a correct copy. In this view of the matter, we do not find much merit in the controversy that has been raised.
11. The judgment referred to by the learned counsel for the petitioner lays down the following requirements
(1) The particular form as given in section 76 of the Evidence Act is not necessary.
(ii) There must be something to show that it is a true copy, such as an endorsement by an authorised person that it was copied and compared.
The copy supplied by the Income-tax Officer alongwith the demand notice however did not fulfil the requirements as laid down in that judgment, The Tribunal found that
(i) It is the Income-tax Officer and not his clerk who can certify the correctness of a copy.
(ii) There was no certificate that it was a true copy of the original.
' The copy sent by the Income-tax Officer, therefore, cannot be called a certified copy by any standard.
12. The same point was considered in Rasipuram Union Motor Service Ltd. v. C. I. T. (I) by a Division Bench of the Madras High Court. It was held that the copy of the order to be filed with the appeal must be a certified copy which satisfies the requirement of section 76 of the Evidence Act. The test prescribed by section 76 of the Evidence Act it was observed, is whether the person who applies for a copy of a document has a right to inspect it. The Court found that the assessee undoubtedly had the right to inspect the order passed on appeal by the Appellate Assistant Commissioner. It further held that the order of the Appellate Assistant Commissioner was a public document within the meaning of section 76 of the Evidence Act as otherwise neither the copy served on the assessee nor the one supplied to him on his application could be considered to be a certified copy.
13. In Malayalam Plantations Ltd. v. C. I. T. (2), the Court relied on the above case and held that by long usage the term 'certified copy' has obtained a special meaning in view of section 76 of the Evidence Act and that term when used in connection with an appeal and with reference to the order against which the appeal is filed, has always been understood as the (1) AIR 1957 Mad. 151
(2) AIR 1959 Ker. 34 copy which the party preferring an appeal obtained under section 76 of the Evidence Act on payment of necessary fee.
14. A certified copy will, therefore, be one which answers the requirements as given in section To of the Evidence Act, by reference, even though Evidence Act is not applicable. It may, therefore, be supplied in any form provided that it bears a certificate of an authorised officer that it is a true copy of the original in his custody. The time for obtaining such a copy is also to be excluded under section 67/A in order to file an appeal within the time provided by section 30 of the Income-tax Act.
15. A Division Bench of Assam High Court in Sardar Mal Khumchand v. C. I. T. (1) held that the assessee is entitled to get excluded the time taken for obtaining a certified copy of the Tribunal's order even though the copy is not required to be filed alongwith the application, in computing the period of limitation, for an application for a reference under section 66 (1) of the Indian Income-tax Act, 1922. The Court had relied in this case on Jijibhoy N. Surry v.
7. S. Chettyar (a Firm) (2).
16. The views expressed above do lead us to the conclusion that an, intending appellant has got the right to get excluded the time requisite for obtaining a certified copy even though an attested copy had beep supplied to him by the Income-tax Officer, alongwith the notice of demand or even if he is not required to file one with an application for reference. The plea, that as a practice has developed by which the appellate authority has started accepting appeals with attested copies, supplied alongwith the demand notice, the certified copies are not necessary and that no time requisite for obtaining these copies should be excluded, amounts to sacrificing legal rights at the altar of practice. It is one thing not to insist on the supply of a certified copy while it is quite different to deny a person the time requisite for obtaining a certified copy if one chooses to file an appeal strictly in accordance with the Rules. The appellate authority has a discretion to condone delay or entertain appeal without a certified copy, but it has no jurisdiction, to refuse to entertain an appeal filed in accordance with the Rules or to include time requisite for obtaining copy.
17. The respondent had, in the case in hand, applied for a certified copy. It is admitted that the certified copy had not been supplied to him till the hearing and decision of the appeal. The application for a copy had been made alongwith the legal fee within the period provided for the appeal. The respondent thus could lawfully wait for filing his appeal till the certified copy was received. The Tribunal, on the other hand, could either entertain appeal with the attested copy and condone the delay or return the appeal to the respondent so as to be filed after the certified copy had been supplied. It could also entertain the appeal but may have deferred its decision till the certified copy was supplied.
18. All the above aspects help the respondent as in all those cases either the delay would be condoned or the appellate authority would have asked the respondent to file appeal alongwith a certified copy. In that situation, time requisite for obtaining the copy would have been excluded.
' For the reasons given above, we do not agree with the contentions of the petitioner and answer the reference in the affirmative. The costs shall be paid by the petitioner.
(1) (1963) 49 T R 961
(2) A R 1928 P C 103