1. This is an assessee's application under Section 66(3) of the Income-tax Act arising out of R. A. No. 377 of 1955-56, challenging the correctness of the Appellate Tribunal's decision dated 21-12-1955 rejecting his application under Section 66(1) as having been out of time. The facts shortly stated are these: The assesses petitioner filed an appeal before the Appellate Tribunal hearing I. T. A. No. 2920 of 1954-55 for the assessment year 1953-54 which was partly dismissed on 23-5-1955. On June 2, 1955 the said order of dismissal was received by the petitioner. On 29-7-1955 the petitioner sent a reference application under Section 66(1) of the Act by post, addressed to the Appellate Tribunal, Calcutta Branch, which wasreceived by it on 1-8-1955, that is, the date on which the prescribed sixty days' period of limitation expired. July 31, 1955 being a Sunday was a holiday.
The following day on August 1, 1955 the petitioner sent by telegraphic money order the required fee of Rs. 100/- which was to accompany the application under Section 66(1) of the Act. The money order was received in Calcutta on August 2, 1955 which was out of time. On these facts the Appellate Tribunal rejected the application as barred by limitation.
2. The only question for our decision is whether the application, -- which was sen; without the required fee of Rs. 100/- which was subsequently sent by the petitioner by telegraphic money-order but reached out of time, -- can be treated as an application made within time as required under Section 66(1) of the Act.
3. Mr. B. K. Mohanty, learned counsel for the petitioner, by reference to Section 66(1) read with Rules 7 and 35 contended that there is nothing to show that the required fee of Rs. 100/- is to accompany the application itself. Rule 35 requires that an application for reference under Sub-section (1) of Section 66 shall be in triplicate and shall be accompanied by a list of documents which in the opinion of the applicant should form part of the case and a translation in English of any such document, where necessary. The rule is silent as to whether the required fee of Rs. 100/- is to accompany the application itself as provided in Section 66(1) of the Act.
Then again the learned counsel contended that Sub-rule (2) of Rule 7 does not say that the required fee of Rs. 100/- is to accompany the application which is sent by post. All that Sub-rule (2) states is that the application sent by post, shall be deemed to have been presented to the Registrar on the day on which it is received in the Office of the Tribunal; that there also the Sub-rule (2) of Rule 7 is silent as to the required fee. Our attention was also drawn to the Form of Section 66(1). Reference application being Form R(T) where on the body of the Form there is no mention about the required fee of Rs. 100/-having to accompany the application; paragraph 6 of the Form states that the documents or copies thereof, as specified below (the translation in English of the documents, where necessary is annexed) be forwarded to the High Court with the statement of the case.
But there is nothing about the required fee having to accompany the application in the said paragraph. But it is to be noticed that there is a Note at the bottom of the Form which states that the application when made by an assessee must be accompanied by a fee of Rs. 100/-: 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 chalan from the Income-tax Officer or the Excess Profits Tax Officer and the triplicate chalan sent to the Tribunal with the application; the Appellate Tribunal will not accept cheques, drafts, hundies or other negotiable instruments. This Note is clearly indicative that the Legislature intended the provision in Section 66(1) to be mandatory with regard to the required fee of Rs. 100/- having to accompany the application, in order that the application under Section 66(1) may be complete. Of course, there is no doubt that the money-order payment of the required fee will not be invalid for the purpose of compliance with the provisions of Section 66(1) provided that the money order reaches its destination within the time of limitation fixed by the section.
4. Then the learned counsel for the assessee relied on certain observations in a decision of this Court in Bachulal and Co. v. Commissioner of Income-tax, Bihar and Orissa : 27ITR587(Orissa) In the said judgment there are observations tending to show that the sending of the money through post office before the expiry of the period of limitation might be sufficient compliance with the provisions to save limitation. In that case the application under Section 66(1) reached the Tribunal on 2-1-1952, that is within time, but the requisite fee, which, under the law is to accompany the application reached the Tribunal by money-order on 4-1-1952; the petitioner in that case relied upon the position that he had sent the money through money order on 31-12-1951, that is, within the period of limitation and as such his application was within time.
In that case, their Lordships decided the question on the position that it was not proved that in fact the petitioner had sent the requisite fee of Rs. 100/- on 31-12-1951 by post; neither the postal receipt granted to the petitioner at the time of remittance nor any other record of the post office was produced to show that in fact the petitioner had sent the requisite fee of Rs. 100/- on 31-12-1951. Their Lordships also thought that it was quite possible that the money order was sent by telegraphic money order on 4-1-1952 that is beyond the period of limitation. It was in this view of the matter, that in the absence of proof of the basic tact that the money was sent through the post office before the expiry of the period of limitation, a position of law did not arise in that particular case for determination of the petition under Section 66(3) of the Act nor did their Lordships in the circumstances feel called upon to express any opinion on the question of law which was left open. Thus the observations in the case cited above do not support the assessee petitioner's contentions.
The learned counsel for the assessee also relied on a decision of the Allahabad High Court in Chatarbhai Chungalal v. Commissioner of Income-tax, Delhi : 30ITR22(All) where the assessee forwarded an application for reference by post which the Appellate Tribunal received within time; he also deposited the fee of Rs. 100/- later in the Treasury within the period of limitation and forwarded the chalan to the Tribunal; the chalan was however received by the Tribunal three days beyond time; the Tribunal held that the application was barred by time. The assessce thereupon made an application to the High Court under Section 66(3) of the Act. The High Court held on those facts that the substance of Section 66(1) of the Income-tax Act was that the application should be made and the fee paid within the period of limitation and that the requirements of the section were duly complied with in that particular case; the deposit of the tee in the Treasury within the period of limitation was a good payment within the meaning of the section; the tact that the chalan was received by the Tribunal after the period of limitation was immaterial and the money was actually paid in the Treasury and the chalan was despatched within that period.
This case is clearly distinguishable from the facts of the present case, where the money was not deposited in the Treasury but was sent by post; despatch by post may not stand in the same category as payment in the treasury. Furthermore, in the present case the money was not sent by telegraphic money order until the very date on which the limitation expired and naturally it cannot be presumed, in the ordinary course that the money order could reach the Tribunal on the very same day to foe within time.
The assessee petitioner also relied on a decision of the Madras High Court in Nagappa Chettier v. Commissioner of Income-tax, Madras : 26ITR741(Mad) where the notice of the order of the Appellate Tribunal under Section 33(4) was served upon the petitioner on January 31: on March 30, the petitioner sent by registered post an application under Section 66(1): on the same day the requisite fee of Rs. 100/- was sent by money order through post office to the Appellate Tribunal and intimation of the fact of the sending of the money order was mentioned in the application itself; the application was received by the Office of the Tribunal on March 31, but the money order was received only on April 2; the Appellate Tribunal held that the application was barred by time as the money order was received one day late,
On these facts the Madras High Court held that the words 'accompanied by a fee of Rs. 100' in Section 66(1) 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; the application, however, is not complete without the payment of the Fee; a reasonable construction of this requirement would be that the asses-see 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, with great respect, with regard to the last proposition, I do not agree, because in view of the mandatory character of the provisions both the fees and the application must reach before the period of limitation expires.
Indeed the fee and the application need not accompany each other at the same time. They may go at different times but must reach before the period of limitation expires. In the Madras case, as aforesaid, the assessee did pay to the post office the said sum to the order of the Tribunal on March 30 and in the ordinary course of events the money would have reached the Tribunal on the succeeding day on March 31, that is, one day before the period of limitation expired. It further appears that the notice of the fact of sending of the money was given in the application itself. Thus, on the facts, the Madras case is distinguishable from the case before us where as aforesaid the telegraphic money order was not sent until the day the period of limitation expired. Naturally the assessee could not normally expect even a telegraphic money order to reach Calcutta the same day before the office of the Tribunal closed. Therefore, the Madras case also does not support the assessee petitioner's contention.
5. The case directly on the point, on similar facts, as in the present case, is a decision of the Allahabad High Court in Hajee Mahboob Bux v. Commissioner of Income-tax U. P. : 18ITR72(All) where two applications under section 66(1) were sent by post from Allahabad to the Appellate Tribunal, Bombay, on the 1st December; on the same day a money order of Rs. 200/- was also sent; the packages containing the applications were received on the 4th December but the money order was-received on the 7th December, while the period of sixty days from the date of service of the notice expired on the 6th December. The appellate Tribunal, on those facts, held that the applications had not been received within time and could not entertain them. The High Court, in an application under Section 66 (3) of the Act held that an application under Section 66(1) is not complete till it is accompanied by a fee of Rs. 100/- and where the fee is received after the expiration of the limitation, the Appellate Tribunal has no power to excuse the delay and the Tribunal was Justified in rejecting the application as barred by limitation.
There is no provision in the Income-tax Act, making the provision of Section 5 of the Indian Limitation Act applicable to an application under Section 66(1). The Allahabad High Court also made it clear in the judgment with which, with great respect, I fully agree that under Section 66(3) the High Court can entertain an application only when the Appellate Tribunal has wrongly decided that the application under Section 66(1) is time barred, while, as a matter of fact, the application was within time; that the High Court has not been given any power under Sub-section (3) to consider whether there was sufficient cause for the delay, nor has the High Court any power similar to the power under Section 5 of the Indian Limitation Act to condone the delay.
This aspect of the position in law has also been discussed in the latest Full Bench decision of this Court in Govinda Choudhury v. Commissioner of Income-tax Bihar and Orissa Patna, S. J. C. Nos. 4 and 5 of 1956, D/- 11-4-1960: : AIR1960Ori187 where the previous Division Bench decision of this Court in Sri Popsing Rice Mill v. Commissioner of Income-tax, Bihar and Orissa : 17ITR420(Orissa) has been overruled.
Thus, in view of the mandatory provisions of Section 66(1) requiring both the application and the required fee of Rs. 100/- to reach the Tribunal within sixty days' period or limitation, as provided in the section, the said application under Section 66(1) was made out of time.
6. The result therefore is that this application under Section 66(3) is dismissed with costs. Hearing fee Rs. 100/-.
7. I agree with the order proposed. The Madras decision : 26ITR741(Mad) on which Mr. Mohanty relied is clearly distinguishable as pointed out by my learned brother. It is therefore unnecessary to express any opinion about the correctness or otherwise of the view taken in the aforesaid decision regarding the interpretation of the words 'accompanied by a fee of Rs. 100/-' in Section 66(1) of the Income-tax Act. I would leave this question open to be decided when it becomes necessary.
8. I agree with my Lord the Chief Justice had the case been one where postal money order receipt had been sent with the petition, but money sent by money order had reached the destination beyond the prescribed period, there would have been an occasion to consider whether the petition was accompanied by the requisite fee.