1. This is an application under section 66(3) of the Indian Income-tax Act to be referred to as the 'Act' hereinafter.
2. Two questions of law were formulated before us at the time of the hearing. It is the contention of the petitioner that in the circumstances of this case, the application 'made' by the petitioner under section 66(1) of the Act must be considered as having been 'made' within the period of limitation. Alternatively it is urged that even if the application had been 'made' within time, this court has power under section 66(3) to direct the Tribunal to treat the application as having been 'made' within the time fixed.
3. The material facts are as follows :
The petitioner filed I.T.A. No. 7971 of 1956-57 before the Income-tax Appellate Tribunal (Hyderabad Bench); that appeal was dismissed on August 7, 1958; the order of the Appellate Tribunal was served on the petitioner on August 16, 1958; the last date for filing the reference application was October 15, 1958; the petitioner posted his application on October 14, 1958; the same was received by the Tribunal on October 17, 1958; the Tribunal rejected that application as haying been time-barred.
4. It is contended by Sri Vijayarangam, the learned counsel for the petitioner, that his petition must be deemed to have been 'made' on October 14, 1958, i.e., the date on which the assessee posted that petition. In support of his contention he relies on the language of section 66(1) which says :
'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 were application is made by the assessee by a fee of one hundred rupee, 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'.
5. According to Sri Vijayarangam, 'making of an application is something different from presenting an application'. He contrasts the language of section 66(1) with the language of section 30(2) wherein it is stated :
'The appeal shall ordinarily be presented within thirty days.....'
6. He wants us to hold that 'making an application' merely means 'bring about an application'. He contends that the task of a petitioner under section 66(1) is complete, the moment he posts his petition. It is true the word 'made' is a word of ambiguous import. If that word had stood by itself, then there would have been something to be said in favour of the contention advanced by Sir Vijayarangam. In our view the legislature has been using the expression 'made the application' as equivalent to 'present the application'. For this view of ours, support is available from the language of section 33 of the Act. Section 33(2) says :
'The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income-tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner'.
7. Both in section 32(2) and in section 66(1) the word 'made' is employed. Now, we may proceed to examine the language of section 33(2A) which says :
'The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-section (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period'.
8. There can be no dispute in fact it is not disputed that the 'presentation of the appeal' mentioned in sub-section (2A) of section 33, refers to the appeal 'made' under sub-section (2) of section 33. The word 'made' and the word 'present' have been used in one and the same sense.
9. Even if we think that the word 'made' connotes something different from the word 'present', there are still other difficulties in the way of the petitioner. Rule 36 of the Appellate Tribunal Rules, 1946, says :
'Rules 7, 8, 13, 20, 21, 22, 23, 26 and 33 shall apply, mutatis mutandis, to an application under sub-section (1) of section 66.'
10. Rule 7(2) says :
'A memorandum of appeal sent by post under sub-rule (1) shall be deemed to have been presented to the Registrar or to the officer authorised by the Registrar, on the day of which it is received in the office of the Tribunal at Bombay or, as the case may be, in the office of such officer.'
11. Rule 8 says :
'The Registrar or, as the case may be, the authorised officer shall endorse on every memorandum of appeal the date on which it is presented, or deemed to have been presented under rule 7 and shall sign the endorsement.'
12. If we take rule 8 and sub-rule (2) of the rule 7 together, it is clear that an application under section 66(1) is deemed to have been 'made' only when that application is received in the office of the Tribunal.
13. From the foregoing analysis, it is clear that the application made by the petitioner barred by time. The petitioner's case is undoubtedly a hard one, but that is no justification for laying down bad law.
14. Having considered the provisions of the Act and the Rules framed, we may now proceed to consider the decided cases bearing on the point in controversy. The petitioner has placed strong reliance on the decision of the Orissa High Court in Sri Popsing Rice Mill v. Commissioner of Income-tax. The learned Chief Justice who delivered the judgment of the bench interpreted section 66 of the Act and rule 7 thus :
'Reading sub-section (1) of section 66 of the Act in the light of rule 7, Appellate Tribunal Rules, 1946, so far as it prescribes the different modes of making an application to the Tribunal, the words 'require by application made to the Appellate Tribunal' may be construed to include sending an application to the Registrar or other authorised officer by registered post. In doing so, the applicant does all that he is required, in his power, to do in order to require the Tribunal to refer to the High Court any question of law arising out of its order; this, of course, is subject to the application being, in the ultimate, received by the Tribunal. For the purpose of the compliance with the condition in the enactment, it is enough that the applicant puts the application into such a machinery for transmission that any delay therein and thereafter be completely beyond his control. Consequently, the time occupied in transmission of the requirement by application should not be computed as a part of the period of limitation of 60 days. The Act does not prescribe any mode of computation. In the absence of such provision, computation must be made in a manner consonant with the advancement of justice' (As summarised in the head-note).
15. The conclusion reached by the court is not supported by the language of either section 66(1) or by rules 7 and 8. This decision was considered and overruled by a full bench of the Orissa High court in Govinda Chowdhury v. Commissioner of Income-tax. In that case their Lordships considered the decisions of the various High Courts and came to the conclusion that in view of the clear and mandatory provision of rules 7(2) of the Appellate Tribunal Rules, there was no room for any liberal construction and the applications presented in that case were out of time and were rightly rejected by the Tribunal. The view of the Orissa High Court in this regard has been shared by various other High Courts. In this connection, we may usefully refer to the decision of the Allahabad High Court in Aligarh District Wholesale Cloth Dealers' Syndicate v. Commissioner of Income-tax.
16. It is next contended by Sir Vijayarangam that even if his application was barred by time, this court has enough power to condone the delay and direct the Tribunal to entertain his application under section 66(1). He relies on the language of section 66(3) in support of his contention.
17. Section 66(3) says :
'If on any application being made under sub-section (1) the Appellate Tribunal rejects it on the ground that it is time-barred, the assessee of the Commissioner, as the case may be, may, within two months from the date on which he is served with notice of the rejection, apply to the High Court, and the High Court, if it is not satisfied of the correctness of the Appellate Tribunal's decision, may require the Appellate Tribunal to treat the application as made within the time allowed under sub-section (1)'
18. Before this court can direct the Tribunal to re-entertain the application, it must be satisfied that the decision rendered by the Tribunal is not correct. Unless and until it comes to that conclusion, this court will have no jurisdiction to direct the Tribunal to entertain the application. Our attention has been invited to any provision which empowers this court to condone the delay in making an application under section 66(1). Condonation of delay is not an inherent power vested in courts. It is power that has to be granted. We have earlier come to the conclusion that the Tribunal was right in holding that the application made is barred by limitation. Therefore, we cannot hold that the Tribunal's decision is not correct. If we not in a position to hold that the Tribunal's decision is not correct, that undoubtedly we cannot, then, it is not within our powers to direct the Tribunal to re-entertain the petitioner's application. Emphasis was laid on the words 'treat the application as made within the time'. From these words, it is contended that even if the application had not been filed within time, this court has power to direct the Tribunal to treat is as having been 'made' within time. This contention ignores another part of section 66(3) which says :
'.... if it is not satisfied of the correctness of the Appellate Tribunal's decision,....'
19. In this connection, we may usefully refer to the decision in Bansilal Gulabchand v. Commissioner of Income-tax. The judgment of the court was delivered by Chagla C.J. The learned Chief Justice held :
'A 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). Where there has been such delay and the assessee's application has, therefore, been rejected by the Tribunal, and then the assessee comes before the High Court under sub-section (3), it is impossible for it to 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 Tribunal's decision that the High Court has power to require the Tribunal to treat the application as made within time allowed under sub-section (1). Hence, in such a case, the High court has no power to condone the delay and direct the Tribunal to treat the application as being within time. The expression used in section 66(3) 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 the High Court has 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 making an application made under section 66(1). If the Tribunal had been given a power to 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 the High Court to go in to that question and take a different view from the one taken by the Tribunal, but when such a power is not given to the Tribunal at all. it is difficult to understand how the High Court can even consider the application and direct the Tribunal to treat the application as made within the time allowed' (As summarised in the head-note).
20. We are in respectful agreement with these observations of the learned Chief Justice.
21. For the reasons mentioned above, we are constrained to reject this application. But in the circumstances of the case we make no order as to costs.
22. Application dismissed.