This is a writ petition under article 226 of the Constitution of India. The short point raised in the petition is that the Commissioner of Income-tax was not right in holding that the petitioners revisions were barred by limitation and in refusing to consider them on the merits.
The facts giving rise to this petition are that the Appellate Assistant Commissioner passed orders on the petitioners appeals on January 21, 1949. The petitioner was not given notice of the date on which the judgment was to be pronounced with the result that the petitioner did not come to know of the orders of the Appellate Assistant Commissioner. The petitioner says that he did not became aware of the said orders before the 20th March, 1953. There is discrepancy about this date in the two memoranda of revisions (annexures 'B-1' and 'B-2'), in one of which the date given in March 20, 1953, and in the other, March 30, 1953. The petitioner did not file appeals before the Tribunal and no reason at all has been shown why the appeals were not filed. The petitioner says that he filed revisions before the Commissioner on the 22nd April, 1953, under section 33A(2) of the Income-tax Act. It may be stated that the memoranda of revisions, which are annexures 'B-1 and 'B-2', are dated the 22nd April, 1953, but the Commissioner in his order, annexure 'C' to the affidavit in support of the petition, states that the revisions were filed only on the 9th May, 1953. It is possible that the memoranda of revisions were drawn up on the 22nd April, 1953, but were not filed until the 9th April, 1953, but were received in the Commissioners office only on the 9th of May, 1953. Be that as it may, this does not make any difference to the position that the revisions were filed after a very great delay and after the period of one year prescribed under section 33A had long expired. In the memoranda of revisions no attempt whatsoever was made to explain the delay in filing the revisions beyond the bald statement that the orders of the Appellate Assistant Commissioner dated January 21, 1949, had been received by the petitioner on the 20th March, 1953. Neither in the memoranda of revisions nor in the writ petition before me has any attempt whatsoever been made to explain the delay which was caused beyond the 20th March, 1953, up to the date on which the revisions were filed or were received by the Commissioner. The period of limitation prescribed under section 33A(2) for revision applications is one year from the date of the order. The expression 'date of the order' has been the subject of interpretation by a division bench of this court in the case of Haji Ghulam Hussain & Sons v. Commissioner of Income-tax, in which it was laid down that the expression 'the date of such order' does not mean the date on which the order was communicated, but the date on which the order was actually made. It is true that the case before the division bench was one under the Excess Profits Tax Act and the question of the interpretation of that expression came up for consideration as the expression occurred in rule 17A of the Excess Profits Tax Rules. I am, however, of the view that as the expression is identical and the two statutes, namely, the Excess Profits tax Act and the Income-tax Act, are in pari materia, it is a decision which is equally applicable in the interpretation of that expression in section 33A(2) of the Income-tax Act. The view taken by a division bench of this court is binding on me. I may also state that the Punjab High Court has also taken the same view in the case of Mahabir Parshad v. Commissioner of Income-tax. The Bombay and the Madras High Courts have taken a different view in Petlad Bulakhidas Mills Co. Ltd. v. Raj Singh and Muthiah Chettiar v. Commissioner of Income-tax, respectively and have held that the expression 'date of the order' means the date of the communication of the order. With great respect, I am unable to persuade myself to take the view, which has been taken in the decisions of the Bomaby and the Madras High Courts, even if it was possible for me to take a different view. Accordingly, the Commissioner of Income-tax was quite right in holding that the revisions before him were hopelessly belated. It may be unfortunate, but having regard to the clear language of the statute the revisions cannot be held to be within time.
Further, as already pointed out above, no attempt has been made as to why, when the petitioner became aware of the orders on the 20th March, 1953, he took more than one month to file the revisions before the Commissioner. The remedy by an application in revision is not as of right, but a discretionary remedy. If so much delay had already been caused by circumstances over which the petitioner had no control, the petitioner should, at least after the 20th March, 1953, have rushed to file his revisions. But according to the petitioners own showing he sat back for nearly a month and did not file the revisions before the 22nd of April, 1953. If the date given in the Commissioners order is taken to be the correct date for filing revisions, he sat back for a longer period before filing the revisions. There is no explanation of this further delay. The Commissioner was again right in his view that no 'reasonable cause' was shown for condoning the delay. Whether there was sufficient cause or not is a question of fact and a matter of discretion. Obviously in the exercise of my jurisdiction under article 226 of the Constitution, I cannot possibly go into a question of fact or a question of discretion.
There is one other ground on which this writ petition must fail. The Commissioners revisional order which is sought to be quashed by means of this writ petition was passed as long ago as the 29th December, 1955. The writ petition in this court was not filed until almost one year thereafter, namely, on the 12th of December, 1956. It is not stated that the petitioner did not become aware of the order of the Commissioner. What he has stated in the petition is that the files of the case were misplaced somewhere is April, 1956. It has been the well settled practice of this court that writ petitions should be filed within ninety days of the order complained against. The ninety days expired on the 29th March, 1955. Even if the file got misplaced is April, 1956, the petitioner could and should have approached this court within ninety days of the date of the Commissioners order. The averments in paragraph 18 of the affidavit where an attempt has been made to explain the delay in filing the writ petition are of a most unsatisfactory character. Paragraph 18 runs as follows :
'That the petitioner firms business was slack and the firm lay dormant for the last one year or so. In the petitioner firms premises at Generalganj. The petitioners another concern, Beni Prasad Sidh Gopal was also lodged in this period. A few days back the file of this case was discovered from the premises at Generalganj, mixed up with other papers.'
It is difficult to appreciate how the firms business can be slack and at the same time how a firm can lie dormant. The discovery of the alleged loss of the files 'a few days back' is also entirely vague. I am not at all satisfied that any good ground has been made out for explaining the delay which has been caused in filing this writ petition. On this ground alone this petition is liable to be dismissed.
Mr. Satish Chandra, learned counsel for the petitioner, has sought to raise two other points before me. One is that in computing the period of limitation under section 33A(2) of the Income-tax Act, the time taken in obtaining a copy of the order of the Appellate Assistant Commissioner should be excluded, and if the time from the 21st January, 1949, till the 20th March, 1953, is excluded, the revision petitions before the Commissioner would be within time. In support of this submission, Mr. Satish Chandra relies upon section 67A of the Income-tax Act and says that the word 'appeal' used there should be interpreted to include a 'revision application' also. The other submission which Mr. Satish Chandra made is that under the provisions of section 29 of the Limitation Act, the Income-tax Act must be treated to be a special law, and under section 12(2) of the Limitation Act the time which has to be excluded in obtaining the copies for the purpose of filing appeals should be allowed to be excluded in the case of filing of revision petitions also as the word 'appeal' in section 12(2) must beheld to include a revision application also. In support of this submission Mr. Satish Chandra sought to rely on the cases of Ram Singh v. Panchayati Adalat and Chidambara Nadar v. Rama Nadar. I am not inclined to go into these questions for these questions were not raised before the Commissioner. They have also not been raised in the grounds of the writ petition. Prima facie, it appears to me that having regard to the plain language of section 67A, and having regard to the fact that the Income-tax Act contains its own provisions on questions of limitation, the Income-tax Act must be treated to be a self-contained code. Exclusion of time taken in obtaining copies cannot be claimed as extending the period of limitation for filing revision applications. Further under the Income-tax Act, copies of orders sought to be revised are not required to be filed with revision applications. However, in the view which I am taking it is not necessary for me to pronounce an opinion on these points. The result is that the writ petition fails and is dismissed with costs.