RAY, C.J. - This arises out of an application made to this Court, under sub-section (3) of Section 66, Indian Income-tax Act, 1922, complaining against the correctness of the Appellate Tribunal decision dated November 9, 1948, that the assessee application, under Section 66(1), to the Tribunal to refer a question of law said to arise out of its order dated November 19, 1947, was time-barred by 3 days, and that the Tribunal has no powers to condone the delay. The circumstances in which the case arises are as follows :-
The assessee was served with notice of an order under sub-section (4) of Section 33 of the Act on December 4, 1947. He having intended to require the Appellate Tribunal to refer to the High Court a question of law arising out of such order within 60-days of the date of service of the notice of the order made a deposit of Rs. 100 in the Cuttack Treasury on February 2, 1948, being 60th day from the date of such service, by Chalan No. 7; that very day he had sent an application, requiring the Tribunal to refer the question, accompanied with the Chalan by registered post or the officer appointed in that behalf of February 5, 1948, the day which was obviously 3 days beyond the 60th day; the Tribunal rejected the petition as barred by limitation.
We have to determine, under-sub-section (3), as to the correctness of the Appellate Tribunal decision. The law, on the point, consists of the sub-section (1) and (3) of Section 66 Rules 7 and 8 read with Rule 36 of the Income-tax Appellate Tribunal Rules, 1946. Accordingly sub-section (1) of the section the assessee is to require the Appellate Tribunal by application accompanied by a fee of Rs. 100 to refer any question of law arising out of its order. This requirements is available, as a matter or light to the assessee or the Commissioner, as the case may be, whosoever is aggrieved by it. The requirement is to be conveyed on an application addressed to the Tribunal. Under the Rules, the Tribunal discharges its functions by a Bench of two members. The Bench holds its sitting either at its headquarters or at such other places as it may consider convenient. In the present case, the receiving office of an application or appeal is at Madras, and the officer authorized to received is either the Registrar or any other officer authorized by him. Rules 7 and 8 inter apply to a memorandum of appeal to the Tribunal. Such a memorandum may be presented to the Registrar or sent by registered post addressed to the Registrar or such office at any such appointed place. In cases, where memorandum of appeal is sent by registered post, it is deemed to have been 'presented' to the registrar or the authorized officer on the day on which it is received in the office. This rule is extended, in its operation to an application under sub-section (1) of the Section by Rule 36 and the extension is mutatis mutandis, that is, subject to necessary changes in its detail. In other words, necessary change in the readings of rule 7 will have to be made in its application to a case falling under sub-section (1) of Section 66. The result is that an application under the sub-section can be made to the Tribunal by its being presented by him applicant in person or by an agent to the Registrar or the authorized officer or it can be made by sending by a registered post addressed to the officer concerned. The question for determination is whether 'the date of presentation' or 'the date of posting' will be essential date for the purpose of limitations. But for sub-section (2), there shall be no difficulty in pronouncing that one of the modes of application being its transmission by registered post, it shall be deemed to have been 'made' as soon as its is posted. According to sub-section (2), in cases of transmission by registered post, 'presentation' takes effect on the date of receipt in the appropriate office. If 'presentation' is the essentially which is aimed at in order to constituted 'require by application made to the Tribunal' within the meaning of sub-section (1) of Section 66, there is no escape from the conclusion that the concerned application was made on the 5th February and thus beyond the period of limitation. I have already said that Rule 7 does not apply to the instant case of an application in terms but, subject to necessary changes in detail (mutatis mutandis). Primarily, in the case of an memorandum of appeal, actual presentation is a crucial event, being the terminus ad quem of the running of limitation. In this connection we may refer to Section 33 which deals with the subject of appeal to the Appellate Tribunal. Sub-section (1) of the Section reads :-
'Any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him.' Sub-section (2A) must be read in association with it. It runs as follows :-
'The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub-section (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period.'
Reading the two together, it is obvious that the requirement of the section makes 'presentation' of the memorandum of appeal within the 60 days of the order, under appeal, a matter of essence for the purpose of limitations. Added to this, the Legislature clothes the Appellate Tribunal with the power to excuse delay in 'presentation' on sufficient cause being made out. Suppose, a memorandum of appeal, under Section 33(1), is sent by registered post to an authorized officer at a time when it is expected by the appellant that, in normal course of transmission, it ought to be received in his officer within the period of limitation, but due to delay in the transmission not dye to any default of the appellant the memorandum is received at a later date; the Tribunal has the power to excuse duly and admit the appeal after the expiry of the 60 days refereed to in sub-section (1) and (2) of the Section. On the occurrence of such a contingency in the case of an application under Section 66(1), the Tribunal is without any corresponding power. It has to be borne in mind that there was considerable doubt in regard to the power of the Appellate Tribunal to excuse any delay in the presentation of an appeal is in contrast with that employed in Section 66 in relation to an application referred to in sub-section (1). In the former, the presentation of the appeal shall have to be made within 60 days of the date of communication while in the latter the assessee should 'require by an application made within 60 days.' Actual or constructive 'presentation' is not in the picture so far as the section goes. Sub-section (1) of Section 66 contemplates the date of 'receipt' of such application as the terminus a quo for the running of 90 days within which the Appellate Tribunal is required to draw up a statement of the case and refer it to the High Court. If the date of a making of application or, in other words, the date of requiring the Appellate Tribunal an application were meant to be coeval with the receipt of such application, it should have been so expressed in the sub-section in the manner of sub-section (2A) of section 33 or the like. The sub-section contemplates the possibility of an interval of time between them. In doing so, the Legislature must have taken into consideration the unavoidable chances involved in the usual mode of transmission of an application through post. The learned Standing Counsel asks us to sub-rule (2) of rule 7 as fixing or prescribing the day of which the application through shall be deemed to have been made. By adopting this construction, bearing in mind that any delay in transmission, not due to any default on the part of the applicant, is not excusable, would amount to perpetuating a mischief without advancing a remedy. In my view, in applying Rule 7 mutatis mutandis to the case of application the rule shall be read as it should be without sub-rule (2). It is not necessary, in its extended application, to define what presentation of an application is, as presentation does not count nor is contemplates in Section 66. The words 'receipt of an application' mean 'actual receipt, be it on personal presentation to the officer concerned or postal delivery to him' and do not stand in need of any definition. The learned Standing Counsel contends that the necessary changes in detail as indicated in Rule 36, should be confined to reading 'application under sub-section (1) of Section 66' in the place of 'memorandum of appeal' and 'receipt' for the word 'presentation.' But the change suggested in paragraph 2 of Rule 7 cannot be said to be 'a necessary change.' To insist upon such construction of the rule would amount to insisting upon a performance on the part of the applicant which is in certain circumstances, impracticable, if not impossible. The only condition that Section 66, sub-section (1), lays down for requiring the Tribunal to state a case is to make an application. That the application should be made in a particular manner, such as, presentation, is not a condition precedent to the exercise of the Tribunal jurisdiction or the applicant right to require a reference. Enactments imposing such conditions as are not conditions precedent to the exercise of the jurisdiction are subject to maxim 'lex non cogit as impossibilia out inutialia' (the law does not compel the doing of impossibilities). Such enactment are to be under stood as dispending with performance of what is prescribed when performance of it is ideal or impossible or impracticable. Instances are not wanting of cases in which transmission through post is ordinately delayed. In the facts of the present case, even if the application had been transmitted through post a week or ten days before the 2nd February, 2nd of February, the possibility that it could not reach or be received in the office of the tribunal on or before the 2nd of February could not be ruled out. In such an eventuality the applicant will have to suffer beyond any redress for no fault of his.
It is said to be the duty of the Judge to make such construction of a statute as shall suppress the mischief and advance the remedy. Even where the usual meaning of the language falls short of the whole object of the Legislature the more extended meaning may be attributed to the word, if they are failure susceptible of it....... If, however, there are circumstances in the Act showing that the phraseology is used in a larger sense than its ordinary meaning that sense may be given to it. (Maxwell on Interpretation of Statutes pp. 70, 71).
Reading sub-section (1) of Section 66 of the Act in the light of Rule 7, so far as it prescribes the different modes of making an application made to the Appellate Tribunal, the words 'require by application made to the Appellate Tribunal' may be construed to include sending an application to the Registrar or other authorized officer by registered post. In doing so, the applicant does all that he is required in his lower to do in order to require the Tribunal to refer to the High Court any question of law arising out of its order-this of course is subject to the application being in the ultimate, received by the Tribunal, for the purpose of compliance with the condition in the enactment, it is enough that the applicant puts the application into such a machinery for transmission that any delay therein and thereafter by completed bound his control. In understanding the position properly, we can call in and an analogy from the underlying principles governing the communication of acceptance of a proposal in the Indian Contract Act. The communication of acceptance is complete as against the proposer when it is put in a course of transmission to him so as to be out of the power of the acceptor. To complete the picture of he analogy in the instant case, we have at one end the Tribunal sending notice of its order to an assessee or the Income-tax Commissioner as the case may be, and at the other end the latter manifesting his reaction either by accepting the validity of the order or by challenging the same and requiring the Tribunal to state a case and refer it to the High Court. This requirement under the rues can be effected by putting an application in a course of transmission by registered post (a machine for transmission beyond the applicant control) to the Tribunal. On principle, when the application to be out of the power of the applicant subject to delivery of the application to the Tribunal, the communication of the requirements becomes complete as against the Tribunal who sent notice of its order.
In short, the time occupied in transmission of the requirements by application should not be computed as a part of the period of limitation of 60 days. The Act does not prescribe any mode of computation. In the absence of such provision, computation must be made in a manner consonant with the advancement of justice. The Income-tax Appellate Tribunal Rules can neither for purposes such as determination of the mode of making or preferring appeals or making application be taken to be exhaustive nor imperative. It would be height of absurdity to contend that an assessee cannot be deemed to have made an application under sub-section (1) of the section when he presents the same to the Bench whose order he requires to impugn and the latter accepts it.
Considering in the premises above, this Court is not satisfied of the correctness of the Appellate Tribunal decision rejecting the application of the assessee under sub-section (1) of Section 66 of the Act on the ground that it is time-barred. We, therefore, require the learned Appellate Tribunal to treat the application as made within the time allowed under sub-section (1) of the section.
In the result, we allow the application of the assessee and send the case back to the Appellate Tribunal to consider his application under sub-section (1) on its merits. In the circumstances of the case, each party should bear his own costs.