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Bansilal Gulabchand Vs. the Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai
Decided On
Case NumberIncome-tax Application No. 20 of 1947
Judge
Reported in(1948)50BOMLR375
AppellantBansilal Gulabchand
RespondentThe Commissioner of Income-tax
Excerpt:
.....to tribunal for reference to high court-delay in filing application-delay not excused by tribunal-application to high court to excuse delay-whether high court has such power.;the high court has no power to excuse delay in filing an application by an assessee before the appellate tribunal under section 66(1) of the indian income-tax act, 1922.;the appellate tribunal has no power to condone any delay in making an application under section 66(1), and if the assessee applies to the high court under section 66, sub-section (3), the high court cannot say that in dismissing his application the tribunal acted otherwise than correctly. under sub-section (3) it is only if the high court is not satisfied of the correctness of the trbiunal's decision that it has the power to require the..........tribunal is not correct? the position under the act is really very curious. section 33(2)(a) gives power to the tribunal to admit an appeal against the order of the appellate assistant commissioner after the expiry of the period of limitation if there is sufficient cause shown why the appeal was not presented within time. again, under section 30(2), where an appeal is made against the order of the income-tax officer to the appellate assistant commissioner, power is given to him to admit an appeal after the expiration of the period, if he is satisfied that the appellant had sufficient cause for not presenting it within the period of limitation. but, as far as section 66(1) is concerned, no power is given to the tribunal to excuse the delay if the application is not made within sixty days.....
Judgment:

M.C. Chagla, C.J.

1. This is an application to excuse the delay of forty-five days in filing an application before the Appellate Tribunal by the assessee under Section 66(1) of the Act. It is not disputed that the application of the assessee was out of time and, when it was presented to the Tribunal, the Tribunal made an order dismissing the application on the ground that it was barred by limitation. The assessee now comes to us under Section 66(3) and he wants us to require the Appellate Tribunal to treat this application as made within time allowed under Section 66(1). Under Sub-section (3) it is only if we are not satisfied of the correctness of the Tribunal's decision that we have the power to require the Tribunal to treat the application as made within time allowed under Sub-section (1). Now can we say in this case that the decision of the Tribunal is not correct? The position under the Act is really very curious. Section 33(2)(a) gives power to the Tribunal to admit an appeal against the order of the Appellate Assistant Commissioner after the expiry of the period of limitation if there is sufficient cause shown why the appeal was not presented within time. Again, under Section 30(2), where an appeal is made against the order of the Income-tax Officer to the Appellate Assistant Commissioner, power is given to him to admit an appeal after the expiration of the period, if he is satisfied that the appellant had sufficient cause for not presenting it within the period of limitation. But, as far as Section 66(1) is concerned, no power is given to the Tribunal to excuse the delay if the application is not made within sixty days of the date upon which the assessee is served with the notice of the order under Sub-section (4) of Section 33. By Act VII of 1933, Sub-section (7A) was inserted in Section 66 and that applied Section 5 of the Indian Limitation Act to applications to be made to the High Court by an assessee under Sub-section (2) or (3) of that section. Therefore, if an assessee is out of time in coining to this Court to require the Tribunal to state a case, or if he is out of time when he is complaining about the decision of the Tribunal that an application under Sub-section (1) was time-barred, the delay can be excused by the High Court under Sub-section (7A). But, even when the Legislature amended the Act, they did not make good the lacuna which existed with regard to the applications to be made to the Tribunal under Section 66(1) of the Act. Therefore, as the Act stands today the position is that the Tribunal has absolutely no power to condone any delay in making the application under Section 66(1), and when the assessee comes before us under Sub-section (3), it is impossible for us to say that in dismissing his application the Tribunal acted otherwise than correctly. I frankly confess that the language of Sub-section (3) of Section 66 is far from clear. The expression used in that sub-section that power is given to the High Court to require the Appellate Tribunal to treat the application as made within time allowed under Sub-section (1) seems to suggest that we have the power to call upon the Tribunal to admit an application which prima facie is barred by limitation. But it is impossible to give that construction to that expression when no power is given to the Tribunal itself to condone delay in making an application made under Section 66(1). If the Tribunal had been given a power of that nature, and if the Tribunal had come to the conclusion that the assessee had failed to show sufficient cause for excusing any delay, then it would be open to us to go into that question and take a different view from the one taken by the Tribunal, but when we find that such a power is not given to the Tribunal at all, it is difficult to understand how we can even consider the application and direct the Tribunal to treat the application as made within time allowed. We cannot agree with Mr. Baptista's contention that Sub-section (7A) also applies to applications to be made to the Tribunal under Section 66(1). He says that by reason of Sub-section (7A) the High Court has been given power to excuse delay in presenting an application to the Tribunal under Section 66(1). It is impossible to take that view of Sub-section (7A) because in terms it only refers to applications to the High Court by an assessee under Sub-sections (2) and (3).

2. We sincerely hope that the Legislature will attend to this question as soon as possible because this discloses a very serious lacuna in the Act, and we are sure the Legislature could not have intended that no power should be given either to the Tribunal or to the High Court in any case and in any circumstances to condone delay in making applications under Section 66(1). But this is more a matter for the Legislature than for us, and we cannot do more than merely express a hope that the Legislature will suitably amend the Act in the near future. The result, therefore, is that the rule is discharged with costs.


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