These are two applications under Section 66(3) of the Indian Income-tax Act. The two applications under section 66(1) of the Indian Income-tax Act were sent by post from Allahabad to the appellate Tribunal, Bombay Bench, on the 1st of December, 1945. On the same day a money order of Rs. 200 was also sent. The packages containing the applications were received on the 4th of December, 1945, but the money order of was received on the 7th of December, 1945. The period of sixty days from the date of service of the notice expired on the 5th of December, 1945. The appellate Tribunal thereupon held that the applications had not been received within time and could not be entertained. They relied on the language of section 66(1) of the Indian Income-tax Act which is as follows :-
'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.....'
From the narration of facts given above it would appear that though the applications were received on the 4th of December, 1945 they were not accompanied by a fee of Rs. 100 each and the fee was received on the 7th of December, 1945, i.e., two days after the expiry of sixty days. The Appellate Tribunal was, therefore, justified in holding that the applications were not in order when presented and when the money was received and defects removed the applications had become time-barred.
Under section 66(3) of the Indian Income-tax Act the High Court can entertain an application only when the Appellate Tribunal has wrongly decided that an application is time-barred, while, as a matter of fact, the application was within time. Under sub-section (3) of section 66 of the Indian Income-tax Act the Court has not been given any power to consider whether there was sufficient cause for the delay, nor has the court any power similar to the power given under Section 5 of the limitation act to condone the delay. The language of sub-section (3) of section 66 is as follows :-
'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 or 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 Tribunals decision, may require the Appellate Tribunal to treat the application as made within the time allowed under sub-section (1).'
It will be clear from this that all that the High Court has to see is whether the decision of the Appellate Tribunal that the application was time-barred was or was not correct. Section 5 of the Limitation Act has been made applicable to an application under sub-section (2) or sub-section (3) by sub-section (7A) of Section 66 of the Indian Income tax Act. This sub-section (7A) was introduced by Section 28 of the Indian Income-tax (Second Amendment) Act, 1933 (Act XVIII of 1933). The sub-section is as follows :-
'Section 5 of the Indian Limitation Act, 1908 (Act No. IX of 1908), shall apply to an application to the high court by an assessee under sub-section (3) or sub-section (3A).'
The words 'under sub-section (2) or sub-section (3)' in sub-section (7A) of Section 66 of the Indian Income Tax Act were introduced by the Indian Income-tax (Amendment) Act (No. VII of 1939) only to clarify that the application mentioned in this sub-section refers to the applications under sub-section (2) and (3). These, however, are the only two sub-sections under which applications can be made to the High Court and addition of these words in the clause was only for the purpose of clarification. There is no provision in the Income-tax Act making the provision of Section 5 of the Limitation Act applicable to an application under Section 66(1) filed before the Tribunal to refer a question of law. It was held by this Court in In re Lala Ganesh Prasad, that an application requesting the Commissioner of Income-tax to state a case to high court is not complete till it is accompanied by a fee of Rs. 100 and where the fee is received after the expiration of limitation, the Commissioner has no power to excuse the delay and the application is time-barred. The bench was of the opinion that there is no provision authorising the Commissioner to have recourse to Section 5 of the Limitation Act, 1908, in connection with an application presented before it. The same view has been expressed by the Bombay High Court in Bansilal Gulabchand v. Commissioner of Income-tax, Bombay and the Madras High Court in the case of Official Receiver, Ramnad v. Income-tax Officer, Special Circle, Karaiudi.
Learned counsel for the assessee has urged that this is a lacuna in the Act. It may be so as was observed by the learned chief justice of the Bombay High Court, but it is not for us but for the legislature, if it considers that Section 5 of the Limitation act should be made applicable to applications under Section 66(1), to amend the Act. We cannot grant relief to the assessee on the ground that there was sufficient cause for the delay and the assessee was not responsible for the post office not having delivered the money order within time.
The applications have no force and are dismissed with costs.