1. These are three applications under Section 66(3), Indian Income-tax Act.
2. The petitioner in all these three cases received notice of a decision of an appeal by the Income-tax Appellate Tribunal on 24-10-1950. He could apply for a reference to be 'made to this Court under Section 66(1) of the Act within sixty days of the receipt of such notice. This period of sixty days expired on 23-13-1950.
3. On 22-12-1950 the petitioner sent from Beawar in Ajmer State his application under Section 66 (1) to the Appellate Income-tax Tribunal at Delhi by registered post. The application way received by the Tribunal on 28-12-1950, that is, within time.
4. On 22-12-1950, he also wanted to deposit the fee of Rs. 100/- which has to accompany the application under Section 66(1). By an extraordinary notification that day was declared to be a public holiday on account of the Barawafat festival so far as Government offices and treasuries were concerned. He could not, therefore, deposit the amount in the treasury and send the challan with the application on that date. He deposited the fee of Rs. 100/- in the treasury at Beawar on 23-12-1950, that is, within limitation and sent the challan that very day by registered post.
The 24th and 25th of December being holidays, the challan was received by the Appellate Income-tax Tribunal on the 26th December, three days beyond time. The Tribunal held that the application was barred by time and dismissed it by an order dated 12-4-1951.
5. In this case the petitioner has urged that the order of the Income-tax Appellate Tribunal rejecting his application us barred by time was erroneous.
6. Section 66(1) provides:
'Within sixty days of the date upon which he is served with notice of an order under Sub-section (4)of Section 33, the assesses 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, 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.'
This section requires two things: (1) the application is to be made within 60 days, and (2) the application is to be accompanied by a fee of Rs. 100/-. Since the fee has to accompany the application it is obvious that the fee must also be paid within the period of 60 days. 'Accompany' means 'to go with'' or 'attend as a companion or associate' or ''to go along with'' (see Webster's International Dictionary).
So long as the application is made within the period of 60 days and so long as the fee of Rs. 100/-is also paid within 60 days, and it appears that the fee is 'to go along with' the application it can be said that the application was made within 60 days accompanied by a fee of Rs. 100/- and in that case it is not necessary that physically the application and the fee should be presented at one and the same time.
Where, for instance, an application is made 10 days before the expiry of the 60 days and the fee is paid 5 days before the expiry of the period and it is stated that the fee is in respect of the application already made, the application can be said to have been made on the date on which the fee was paid, because only then, it is a completed application.
The intention of the law therefore cannot be that, although the application was made and the lee was paid within 60 days and the fee was in respect of the application and was to go with it, yet because they were not presented at one and the same time in company with each other, the application is defective. Therefore, the requirements of this section would be taken to have been complied with if the application was made and the fee was paid to the proper person within the period of 60 days.
7. As already stated, the application in this case was made within the period of limitation and was received by the Tribunal within the period of limitation. The payment of the fee of one hundred rupees was made not to the Appellate Tribunal but in the treasury. The Appellate Tribunal after receiving the fee also transmits it to the treasury. The revenue authorities have under their rule making power under Section 59 of the Act made a rule (See note to Rule 22A) that the payment may be made not directly to the Income-tax Tribunal itself but in the treasury at the option of the assessee. The note to Rule 22A of the Indian Income-tax Rules is to the following effect:
'The application when made by an assessee must bo accompanied by a fee of one hundred rupees. It is suggested that the fee should be credited in the treasury or a branch of the Imperial Bank of India, or a branch of the Reserve Bank of India after obtaining a challan from the Income-tax Officer, or the Excess Profits Tax Officer and the triplicate challan sent to the Tribunal with the application. The Appellate Tribunal will not acceptcheques, drafts, hundis or other negotiable instruments.'
8. Under this note the fee may not be sent to the Income-tax Appellate Tribunal in cash. The Income-tax Appellate Tribunal does not accept cheques, drafts or hundis or other negotiable instruments and the note suggests that the amount may be paid in the treasury or a branch of the Imperial Bank of India or a branch of the Reserve Bank of India. The note also directs that the challan may be sent along with the application to the Tribunal.
9. In the present case the amount was duly paid in the treasury at Beawar within the period of limitation. We think that the substance of Rule 66 (1) being that the application should be made and the fee paid within sixty days, the requirements of that section were duly complied with in the present case. The mere fact that the challan was received by the Income-tax Appellate Tribunal after the period of limitation is immaterial when the money was actually paid in the treasury within the period of limitation and the challan was also despatched within that period. We respectfully agree with the following observations of the Madras High Court made by them in -- 'Nagappa Chettiar v. Commr. of Income-tax : 26ITR741(Mad) : -
''The words 'accompanied by a fee of rupees one hundred under Section 66(1), Income-tax Act should not be given a too literal interpretation. 'Accompanied' cannot mean necessarily that the sum of Rs. 100/- or something representing that sum should be contained in the same envelope as the' application, or that both the application and the money should be delivered together at the same time ......A reasonable construction of this requirement would be that the assesscc should have made payment of the fee in such time that in the ordinary course it would either be received or deemed to be received within the time allowed.''
10. Several cases on the interpretation of this section have been cited by the parties before us, but in our opinion they are all distinguishable.
11. In -- 'Ganesh Prasad v. Commr. of Income-tax' : 10ITR286(All) money was sent by insured letter within the period of limitation but reached the Appellate Tribunal two days alter the period of limitation. It was held by this Court that this was not sufficient compliance with the provisions of the section. It will be noted that the money in this case was not deposited in the treasury but was sent by post. A despatch by post may not stand in the same category as a payment in the treasury. Further, it was not shown that in the ordinary course the money order should have reached the Appellate Tribunal within time.
12. In -- 'Hajee Mahboob Bux v. Commr. of Income-tax, U. P : 18ITR72(All) the money was sent by money order within the period of limitation but was received by the Tribunal 'after the period of limitation and it was held that there was no sufficient compliance with the terms of the statute. The same remarks apply to this case as were noted with reference to Lala Ganesh Prasad's case (B) (ubi supra).
13. In -- 'Popsing Rice Mills, Bhadrak v. Commr. of Income-tax, Bihar and Orissa : 17ITR420(Orissa) the application was sent by registered post within the period of limitation but was received by the Registrar or other authorised officer of the Appellate Tribunal after the period of limitation. It was held that the posting of the letter within the period of limitation fulfilled the requirements of the law. This appears to run counter to the opinion of this Court expressed in the first two cases mentioned above.
This case was considered by a Full Bench of the same Court reported in -- 'Bachu Lal & Co. v. Commr. of Income-tax, Bihar and Orissa : 27ITR587(Orissa) . The Full Bench, however, decided the case before it on the facts and it was held that there was no proof that the money was sent by post within the period of limitation.
14. Reliance was also placed on a Supreme Court decision in -- 'Commr. of Income-tax, Bombay South v. Ogale Glass Works Ltd : 25ITR529(SC) where a receipt by cheque which was subsequently honoured was held to be a payment which related back to the date on which the cheque was received. The facts of the case were different and it is not necessary to say whether the present case is governed by that decision.
15. We are of opinion that the deposit of the fee in the treasury within the period of limitation as required under Section 66(1), Income-tax Act is a good payment within the meaning of that section, and where the application is made within the period of limitation, the two taken together satisfy the requirements of the section,
16. The result, therefore, is that we allow these applications, set aside the order of the Income-tax Appellate Tribunal and direct the Tribunal to decide the applications of the petitioner under Section 66(1) as required by law. The applicant is entitled to his costs, which we assess at Rs. 100/-in each case.