V. Bhargava, J.
1. This is an application under Section 66(3) of the Income-tax Act by an applicant whose application under Section 66 (1) of the Income-tax Act has been rejected by the Income-tax Appellate Tribunal on the ground that it was barred by limitation. Admittedly, the last date for making the application under Section 66 (1) of the Income-tax Act to the Tribunal was 11-3-1953. The applicant sent his application by registered post on 11-3-1953, and, according to the affidavit filed by the applicant, the registered cover containing the application was delivered to the Tribunal on 12-3-1953. The actual receipt of the application by the Tribunal was thus after the period of limitation had expired.
The question is whether the mere fact that the applicant had despatched the application by registered post on 11-3-1953, when the limitation had not expired, means that the application had been made to the Tribunal within the time allowed. Rule 7 of the Appellate Tribunal Rules, 1946, has been made applicable to an application under Sub-section (1) of Section 66 of the Income-tax Act by Rule 36 of those rules with the further provision that the rule is to apply mutatis mutandis because Rule 7 in terms only governs the mode of sending and presentation of a memorandum of appeal. Under Sub-rule (1) of Rule 7 a person pressenting a memorandum of appeal is permitted to send it by registered post. Under Sub-rule (2) of Rule 7, whenever a memorandum of appeal is sent by post under Sub-rule (1), at is to be deemed to have been presented to the Registrar or to the officer authorised by the Registrar on the day on which it is received in the office of the Tribunal.
In the present case, if Sub-rules (1) and (2) of Rule 7 are both applied mutatis mutandis, it clearly means that the presentation of the application under Section 66 (1) of the Income-tax Act requires an application under that provision of law to be made to the Tribunal. It appears to us to be very clear that mere delivery of the application to the postal authorities after addressing the cover containing the application to the Tribunal or the Registrar of the Tribunal cannot be held to comply with the requirements of Section 66(1) of the Income-tax Act because no application can be said to be made to the Tribunal until it is presented to the Tribunal and, under Sub-rule (2) of Rule 7, the presentation only takes place at the time of the receipt. It seems to us that the proposition that an application can be held to be made to the Tribunal even before it is actually presented before it has merely to be stated for being rejected, unless it can be held that the post office, when the cover containing the application was delivered to it, accepted that letter as an authorised agent of the Tribunal in which case, of course, delivery to the post office may be deemed to be delivery to the Tribunal on the ground that delivery to an agent amounts to delivery to the principal.
We are, however, unable to find any provision in the Income-tax Act or the rules framed thereunder which would constitute the post office in such a case an agent of the Tribunal. If no rules at all had been framed, the applicant would have been required to comply with the provision as it is contained in Section 66 (1) of the Income-tax Act, so that he would have been required to make the application to the Tribunal and it could only be made by being delivered or presented to the Tribunal. It was under Sub-rule (1) of Rule 7 that certain other methods of making an application were laid down, one of the methods being that of sending the application by registered post. This method laid down in Sub-rule (1) was, however, subject to the provisions of Sub-rule (2). The latter Sub-rule made it clear that, in a case where a memorandum of appeal is sent by registered post, it is to be deemed to be presented only on the date of receipt in the office of the Registrar of the Tribunal and, since Rule 7 applies mutatis mutandis to applications under Section 66(1) of the Income-tax Act, an application under that provision of law can also only be deemed to be presented when received in the office of the Registrar of the Tribunal.
2. A further point in this connection, which needs to be taken notice of, is that the Income-tax Act or the rules framed thereunder provided no remedy to the applicant who choses to avail of provisions of Sub-rule (1) of Rule 7 by sending the application by registered post in case delivery of the cover containing the application is delayed by the post office. It appears to us, however, that, if the intention of the legislature, as gathered from the Income-tax Act itself, is kept in view, this is a hardship which the ligislature intended should come into existence. Section 5 of the Indian Limitation Act has not been made applicable to applications under Section 66(1) of the Income-tax Act. There may be a case where a very vigilant assessee may prepare an application under Section 66 (1) of the Income-tax Act long before the period of limitation is to expire and may start off to present it before the Tribunal but, in the way, he may be prevented from coming to the office of the Tribunal by reasons entirely beyond his control, e.g., an accident which may keep him unconscious until the period of limitation has expired.
Though, in such a case, there may be no fault at all of the assessee and he may have been prevented from making the application in time for no fault of his, the Income-tax Act does not permit the Tribunal to condone the delay and mitigate that hardship. If, for such hard cases, no power has been conferred on the Tribunal, we consider that the fact that there is no remedy to an assessee whose application is delayed by the postal authorities is immaterial and is, in fact, in line with that policy. In the case of delay by the postal authorities, it can at least be said that the assessee could have envisaged the possibility of such a delay and he could have taken precaution of not sending his application by registered post if there was any risk that the application would not reach the Tribunal in time.
In the other type of case mentioned by us above, the assessee could not possibly have foreseen the possibility that he would meet with an accident which would prevent him from presenting his application within the period of limitation and yet the law provides no remedy for him in such a case. It is, therefore, not at all surprising that, in a case where, the assessee takes the risk of delay in post and his rights are being prejudiced by the action of the postal authorities, no remedy has been provided to redress his grievance. The reasons, which have been advanced for holding that Sub-rule (2) of Rule 7 should not be held to be applicable to applications under Section 66 (1) of the Income-tax Act, cannot, therefore, be accepted.
3. We may mention that the only decision of a High Court, on which reliance could be placed and was placed by the applicant in the present case, was a decision of the Orissa High Court in Sri Popsing Rice Mills, Bhadrak v. Commissioner of Income-tax, B. and O. : 17ITR420(Orissa) . The reason which led that High Court to take the view that a mere delivery of a cover containing the application under Section 66(1) of the Income-tax Act to the postal authorities for transmission by registered post amounts to making the application to the Tribunal, have, if we may say so with respect, not appealed to us for the reasons which we have given earlier. On the other, hand, the view, which we have expressed above, is in line with the decisions of four other High Courts in Vishwanath Gopal Oil Mills v. S. C. Prashar : 32ITR344(Bom) , Moti Lal Hiralal Shisodia, Firm v. Commissioner oE Income-tax, C. P. and Berar , Khushi Ram Raghunath Sahai v. Commissioner of Income-tax, Punjab, Pepsu, Him. Pra and Bilaspur, Simla , and Commercial and Industrial Bank Ltd., Hyderabad v. Commissioner of Income-tax, Hyderabad . All these four cases were decided subsequent to the decision of the Orissa High Court which has been relied upon by the applicant.
4. For these reasons, we hold that the Tribunal's rejection of the application under Section 66 (1) ofthe Income-tax Act on the ground that it was time-barred was correct. The present application under Section 66 (3) of the Income-tax Act is dismissed but wemake no orders as to costs.