AGARWARA, J. - These are three applications under section 66 (3) of the Indian Income-tax Act.
The petitioner in all these three cases received notice of a decision of an appeal by the Income-tax Appellate Tribunal on 24th October, 1950. He could apply for a reference to the 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 23rd December, 1950.
On the 22nd December, 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 office 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 the 23rd December, 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 Income-tax Appellate 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 the 12th April, 1951.
In this case the petitioner has urged that the order of the Income-tax Appellate Tribunal rejecting his application as barred by time was erroneous.
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 assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of lot 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 required 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 Websters 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 - it appears that 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 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 fee 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.
As already stated, the application in this case was made within the period of limitation. The payment of the fee of one hundred rupees was made not in the Appellate Tribunal but in the treasury. The Appellate Tribunal after received the fee also transmit 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 be 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 accept cheques, drafts, hundis or other negotiable instruments.'
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.
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 section 66 (1) being that the application should be made and 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. Commissioner of Income-tax :
'The words accompanied by a fee of Rs. 100 in section 66 (1) of the Income-tax Act, 1922, should not be given a too literal interpretation. `Accompanied cannot means 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 assessee should have made the 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.'
Several cases on the interpretation of this section have been cited by the parties before us, but in our opinion they are all distinguishable. In Lala Ganesh Prasad, money was sent by insured letter within the period of limitation but reached the Appellate Tribunal two days after 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.
In Hajee Mahboob Bux Ehhan Illahi v. Commissioner of Income-tax, U.P. 3, 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 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 Prasads case
In Sri Popsing Rice Mill v. Commissioner of Income-tax, Bihar and Orissa, the application was sent by registered post within the time 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 Bachulal and Co. v. Commissioner of Income-tax, Bihar & 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.
Reliance was also placed on a Supreme Court decision in Commissioner of Income-tax, Bombay South v. Ogale Glass Works Ltd., Where a receipt by cheques 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.
We are of opinion that deposit of the fee in the treasury within the period of limitation as required under section 66 (1) of the 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.
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.