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Sardarmal Khumchand Vs. Commissioner of Income-tax, Assam, Tripura and Manipur. - Court Judgment

LegalCrystal Citation
Subject;Direct Taxation
CourtGuwahati High Court
Decided On
Case NumberCivil Rules Nos. 1(M), 2(M) and 3(M) of 1963
AppellantSardarmal Khumchand
RespondentCommissioner of Income-tax, Assam, Tripura and Manipur.
Excerpt:
- - in computing the period of limitation prescribed for an appeal under this act or for an application under section 66, the day on which the order complained of was made, and the time requisite for obtaining a copy of such order, shall be excluded. in computing the period of limitation prescribed for an appeal or an application under this act, the day on which the order complained of was served and, if the assessee was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order, shall be excluded......ground that it is filed beyond time is erroneous, as section 67a applies to these cases and if the time required in obtaining the certified copy of the order is excluded, the applications will be within time. the only question for consideration is whether the petitioner can get the benefit of section 67a. the language of section 67a is very wide in our opinion. it is not disputed that the petitioners applied for the grant of the certified copy and after payment of the necessary cost the certified copy was supplied to the petitioners. it is not disputed that if the time required for obtaining the certified copy is excluded the applications will be within time. the only contention on behalf of the department is the in the circumstances of these cases the petitioners were not entitled to.....
Judgment:

MEHROTRA C.J. - These three rules arise out of the applications under section 66 of the Indian Income-tax Act, 1922 (hereinafter called "the Act"). The petitioners in the rules Nos. 1(M) and 2(M) of 1963 are the same. The petitioner in rule No. 3(M) of 1963 is different. The two rules Nos. 1 and 2 relate, however, to different periods. Rule No. 1 relates to the period 1958-59 and rule No. 2 relates to 1959-60. A common question is involved in these three cases and they can be disposed of by one judgment.

The short point which requires consideration is whether section 67A of the Act applies to the present case and whether the applicants were entitled to the exclusion of the time which they required for obtaining the certified copies of the order passed by the Appellate Tribunal. The three assessees filed an appeal before the Appellate Tribunal which was rejected. The copy of the order is alleged to have been sent to the assessees under section 33(4) of the Act. Thereafter, applications were filed under section 66(1) of the Act for reference to the High Court certain questions of law which arose out of the order of the Tribunal. The Tribunal rejected these applications on the ground that they were barred by limitation.

Section 66(1) of the Act provides :

"66. (1) Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33 the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court."

The application under section 66(1) thus has to be filed within sixty days of the service of the notice of the order passed by the Appellate Tribunal under section 33(4). The Tribunal held that as these applications were filed beyond sixty days of receipt of the order of the Tribunal, they were beyond time under section 66(1). The Tribunal has not considered the provision of section 67A of the Act at all. Section 67A of the Act provides :

"67A. In computing the period of limitation prescribed for an appeal under this Act or for an application under section 66, the day on which the order complained of was made, and the time requisite for obtaining a copy of such order, shall be excluded."

Under section 66 the High Court, if it is of opinion that the decision of the Tribunal rejecting the application under section 66(1) on the ground of limitation is erroneous, can allow the application and direct the Tribunal to treat the application as having been filed within time and dispose of it in accordance with the law.

The contention of the petitioners is that the decision of the Tribunal in rejecting the application on the ground that it is filed beyond time is erroneous, as section 67A applies to these cases and if the time required in obtaining the certified copy of the order is excluded, the applications will be within time. The only question for consideration is whether the petitioner can get the benefit of section 67A. The language of section 67A is very wide in our opinion. It is not disputed that the petitioners applied for the grant of the certified copy and after payment of the necessary cost the certified copy was supplied to the petitioners. It is not disputed that if the time required for obtaining the certified copy is excluded the applications will be within time. The only contention on behalf of the department is the in the circumstances of these cases the petitioners were not entitled to the exclusion of the time required in obtaining the certified copy. The first contention is that the time required for obtaining the certified copy will be only the time required for obtaining the copy, if the copy is required to be filed along with the application. We do not think that there is any justification for such an interpretation of the section. The language of the section is very wide even to cover the cases where the copy of the order is not required to be filed along with the application. The legislature thought of giving a right to the assessee to exclude the time required for obtaining the copy of the order, because unless the certified copy is before the assessee, he may not be in a position to file the appeal. The language of section 67A is similar to the language of section 12(2) of the Indian Limitation Act. In the case of Jijibhoy N. Surty v. T. S. Chettyar interpreting the provision of section 12 of the Limitation Act it was held by their Lordships that in reckoning the time for presenting an appeal, the time required for obtaining a copy of the decree and judgment must be excluded, even though by the rules of the court it is not necessary to obtain such copies. The authorities were all considered and on the grammatical construction of section 12 it was held by their Lordships that the fact that the copies are not required is not relevant for limiting the scope of the wide language of section 12.

The next contention is that the time cannot be said to be required in obtaining the copy in the cases where the copy has already been supplied to the assessee under section 33(4). The legislature has not drawn any such distinction and the language, in our opinion, does not justify introducing any such limitation in the section itself. Reliance has been placed on the case of T. N. Swami and Co. v. Commissioner of Income-tax wherein it has been held by a Bench of the Punjab High Court that in cases where a copy has been supplied under 33(4), no time is requisite for obtaining the copy. An earlier Full Bench decision of the same High Court has been distinguished on the ground that the Full Bench case related to a Letters Patent Appeal where the copy was not required to be filed. We are not inclined to agree with the decision of the Punjab High Court. We do not think there is any justification for introducing the limitation in the section itself. The language of the section is very plain and there is no basis for holding that the benefit of the section 67A cannot be claimed by an assessee even though he has applied for the certified copy and the time has been taken in obtaining the copy, simply because a copy of the order under section 33(4) has been supplied to him. Another aspect of the matter is that if this interpretation is put then as in all cases copy has to be supplied to the assessee under section 33(4) the application of section 67A in so far as application under section 66(1) is concerned will be negatived. When section 67A was enacted the legislature was aware of the fact that the copy has to be supplied to the assessee under section 33(4) and thus we see no justification for introducing words in the section itself.

Our attention has been drawn to section 268 of the Income-tax Act, 1961, which has replaced section 67A. The new section 268 reads as follows :

"In computing the period of limitation prescribed for an appeal or an application under this Act, the day on which the order complained of was served and, if the assessee was not furnished with a copy of the order when the notice of the order was served upon him, the time requisite for obtaining a copy of such order, shall be excluded."

This section corresponds to section 67A. Under this section the time requisite for obtaining a copy of the order is not available if a copy of the order is furnished to the assessee when the notice is served on him. If under section 67A the time requisite for obtaining the copy is not available, then there was no necessity for the legislature to redraft the section and limit the operation of the section to the cases where copy has not been supplied. Mr. Choudhuri has very strongly contended that the legislature has only given effect to the decision of the Punjab High Court. As we have already pointed out, if under section 67A it was not available to the assessee to get the benefit when the copy was given, it was not necessary to redraft the section.

Mr. Choudhury has further taken a preliminary objection that the application filed before this court is beyond time. Mr. Lahiri for the petitioners has first contended that the applications are not beyond time inasmuch as, though the certified copies were sent by registered post on the 15th November, 1962, they were received later and if the period is taken to be the date on which the copies were received, the applications were within time. He has further contended that even if the applications were beyond time, an affidavit and an application have been filed along with the petitions for condoning the delay under section 5 of the Limitation Act. In the circumstances of the case we are of opinion that even if the applications are filed beyond time, these are cases where the delay should be condoned and the applications should be treated as having been filed in time. We accordingly allow the petitions and direct the Tribunal to treat the applications filed under section 66(1) as having been filed within time and to dispose of those petitions in accordance with law. The applications are allowed with cost. We assess a consolidated cost of Rs. 50 in rules Nos. 1 and 2 and in the other rule we assess another sum of Rs. 50.

NAYUDU J. - I agree.

Applications allowed.


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