1. This is an application by the assessee under Section 256(2) of the Income-tax Act, 1961.
2. The assessee filed an appeal before the Income-tax Appellate Tribunal in a case relating to the assessment year 1961-62. The appeal was dismissed for default by the Appellate Tribunal on April 13, 1966. The assessee applied under Section 256(1) of the Income-tax Act, 1961, for reference of certain questions of law to this court. The Appellate Tribunal by its order dated September 14, 1966, rejected the application as barred by time; And now this reference has been made.
3. Section 256(2) entitles an assessee to apply to this court for an order requiring the Appellate Tribunal to state the case and to refer it, where on an application made under Section 256(1), the Appellate Tribunal has refused to state the case on the ground that no question of law arises. In the present case, the Appellate Tribunal did not refuse to state the case on the ground that no question of law arose. It rejected the reference application as barred by time. It is, therefore, clear that the present reference application is not maintainable under Section 256(2).
4. The Appellate Tribunal, however, has observed in its order of September 14, 1966, that the case is governed by the provisions of the Indian Income-tax Act, 1922. Whether the proceeding will lie under the Act of 1922 or the Act of 1961 has to be determined by reference to clauses (a) and (b) of Sub-section (2)of Section 297 of the Act of 1961. If the return of income was filed before April 1, 1962, on which date the Act of 1961 was brought into force, the proceeding will lie under the Act of 1922. In case the return of income was filed after that date, it is the Act of 1961 which would apply. From the record before us, it is not apparent whether the return was filed before or after April 1, 1962. But, let us assume, having regard to the basis adopted by the Appellate Tribunal, that the Act of 1922 applies. The present reference application cannot be treated as one under Sub-section (2) of Section 66 because the Appellate Tribunal dismissedthe reference application under Sub-section (1) of Section 66 as barred by time, and for the same reason that we have held that the application does not lie under Sub-section (2) of Section 256 of the Act of 1961, this application cannot be referred under Sub-section (2) of Section 256. Will it He under Sub-section (3) of Section 66 That sub-section provides that if the reference application made under Sub-section (1) of Section 66 is rejected by the Appellate Tribunal on the ground that it is barred by time, then upon application made by the assessee the High Court, if it is not satisfied with the correctness of the Appellate Tribunal's decision, can require the Appellate Tribunal to treat the application as made within time. It was admitted before the Appellate Tribunal that the application was barred by time. The assessee filed an application for condonation of delay in filing the reference application, and the Appellate Tribunal declined to condone the delay on the ground that it had no jurisdiction to do so. In taking that view the Appellate Tribunal was plainly right. Sub-section (7A) of Section 66 applies. Section 5 of the Indian Limitation Act, 1908, applies to Sub-sections (2) and (3) only of Section 66 and does not apply to an application under Sub-section (1) of Section 66. The Appellate Tribunal was, therefore, bound to dismiss the reference application as barred by time. Accordingly, if regard is had to the terms of Sub-section (3) of Section 66 this court cannot require the Appellate Tribunal to treat the reference application as made within time. Moreover, the High Court has no power under Sub-section (3) of Section 66 to condone the delay. Therefore, even if the present application be treated as made under Sub-section (3) of Section 66 it cannot be sustained.
5. In any view of the matter, whether the present application is considered as an application under Sub-section (2) or (3) of Section 66 or under Sub-section (2) of Section 256, this application cannot succeed.
6. The application is rejected. In the circumstances, however, there is no order as to costs. Counsel's fee is assessed at Rs. 100.