JAGANMOHAN REDDY, J. - This is an application under sub-section (3) of Section 82 of the Hyderabad Income-tax Act, against an order of the Income-tax Tribunal at Bombay declaring that the application under sub-section (1) of Section 82 was not filed within the prescribed period of sixty days, but was barred by one day. The assessee by a letter posted on 16th September, 1952, sought leave to appeal to the High Court against an order of the Tribunal dated 19th July, 1952, which letter was received by the Registrar on 18th September, 1952. In fact any application under sub-section (1) of Section 82 ought to have reached the Tribunal on 17th September, 1952. The Income-tax Tribunal held that even if the letter was treated as an application for reference, it was barred by one day, and the fact that it was despatched by post on 16th September, 1952, did not make any difference. In this view of the matter it dismissed the application as being time-barred.
The learned Advocate for the assessee, relying on the decision in the case of Sri Popsing rice Mills v. Commissioner of Income-tax, Bihar and Orissa, contends that an application under sub-section (1) of Section 82 can be sent by post as under the provision of the said section it is not obligatory upon the assessee to present it in person, and since he has posted it within the time prescribed he has done all that he was required, in his power, to do, in order to require the Tribunal to refer to the High Court any question of law arising out of its order.
Sub-section (1) of Section 82 of the Hyderabad Income-tax Act [corresponding to sub-section (1) of Section 66 of the Indian Income-tax Act] provides :- "Within sixty days of the date on which he is served with notice of an order under sub-section (4) of Section 44, the assessee or the Commissioner may, by application in the prescribed form, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and where the application is made by an assessee it shall be accompanied by a fee of one hundred rupees 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 if it is of the opinion that there is in fact some question of law to be referred".
The Appellate Tribunal has in pursuance of powers conferred under sub-section (8) of Section 5A of the Indian Income-tax Act made certain rules which have later been applied to appeals under the Hyderabad Income-tax Act also. After the fiscal integration of Hyderabad State with the Union of India, the President of the Income-tax Tribunal in pursuance of Rule 4 of the Appellate Tribunal Rules issued Standing Order No. 1 of 1st April, 1950, vesting the Bombay Tribunal with jurisdiction to hear appeals under the Hyderabad Income-tax Act as from 1st April, 1950. The rules relevant for purposes of this application are Rules 7, 8 and 36, which are as under : "7(1). A memorandum of appeal to the Tribunal shall be presented by the appellant in person or by an agent to the Registrar at the headquarters of the Tribunal at Bombay, or to an officer authorised in this behalf by the Registrar, or sent by registered post addressed to the Registrar or to such officer.
(2) A memorandum of appeal sent by post under sub-rule (1) shall be deemed to have been presented to the Registrar or to the officer authorised by the Registrar, on the day on which it is received in the office of the Tribunal at Bombay, or, as the case may be, in the office of such officer".
"8. The Registrar or, as the case may be, the authorised officer shall endorse on every memorandum of appeal the date on which it is presented, or deemed to have been presented under Rule 7 and shall sign the endorsement".
"36. Rules 7, 8, 13, 20, 21, 22, 23, 26 and 33 shall apply, mutatis mutandis, to an application under sub-section (1) of Section 66".
A similar question fell for decision in the case of Sri Popsing Rice Mills v. Commissioner of Income-tax, Bihar and Orissa. The above case was also referred to before this Bench in the case of Hiranand Ramsukh v. Commissioner of Income-tax. Hyderabad, in which an application was presented under sub-section (1) of Section 66 to the Registrar, Commissioner of Income-tax at Hyderabad, who sent it by post to the Appellate Tribunal, Bombay. By the time the application was received, it was clearly out of time. In those circumstances it was held that the Registrar at Hyderabad was not authorised to receive such applications, as such claim by the assessee for exclusion of the period which was spent in transmission of the application between the date of presentation before the registrar at Hyderabad and the date of receipt by the registrar, Appellate Tribunal at Bombay, for purposes of computing limitation was untenable. In dealing with the aforesaid Orissa case at page 611, we observed that it was inapplicable to the facts of the case before us, and hence we did not deem it necessary to consider the case in any greater detail.
In the aforesaid case of Popsing Rice Mills the assessee was served with a notice of an order under sub-section (4) of Section 33 on 4th December, 1947. On 2nd February, 1948 (being the 60th day from the date of such service), he deposited Rs. 100 in the Cuttack Treasury and on the same day had sent an application requiring the Tribunal to refer the question of law arising out of the said order accompanied by the challan by registered post to its Madras office. As the application was received by the Registrar or the officer appointed in that behalf of 5th February, 1948, three days beyond the 60th day, the Tribunal rejected it as barred by limitation. It was held that reading sub-section (1) of Section 66 in the light of Rule 7, so far as it prescribed the different modes of making an application to the Tribunal, the words "require by application made to the Appellate Tribunal" may be construed to include sending an application to the Registrar or other authorised officer by registered post. In doing so, the applicant does all that he is required, in his power, to do in order to require the Tribunal to refer to the High Court any question of law arising out of its order, subject to the application being, in the ultimate, received by the Tribunal.
It was further held that for the purpose of compliance with the condition in the enactment, it is enough that the applicant pats the application into such a machinery for transmission and the time occupied in transmission of the application should not be computed as part of the period of limitation of sixty days. The learned Chief Justice delivering the judgment of the Bench was of the view that in applying Rule 7 mutatis mutandis by virtue of Rule 36 of the Appellate Tribunal Rules, to applications under sub-section (1) of Section 66, it should be applied subject to necessary changes in its detail, which will have to be made in the application of the said Rule 7 to a case falling under the said sub-section. He further pointed out that primarily in the case of a memorandum of appeal actual presentation is a crucial event being the terminus ad quem of running of limitation and that on a reading of sub-sections (1) and (2A) of Section 33, it is obvious that the requirements of the section make the presentation a matter of importance for purposes of limitation. The learned Chief Justice went on to observe at pages 423-424 as follows : "The language of Section 33 in relation to preference 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 of 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 making of application or, in other words, the date of requiring the Appellate Tribunal by 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".
We may observe, with great respect, that sub-section (1) of Section 66 nowhere uses the expression "require by an application made within 60 days" as observed by the learned Chief Justice. What the sub-section in effect says is that the assessee may within 60 days from the date on which he is served with the notice of an order under Section 33, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order. In other words, the Tribunal must be required within 60 days to refer the question and within 90 days from the date of being so required it should make a reference. In our view, there appears to be no justification for the assumption that the requirement for the receipt of the application as the terminus a quo of the running of 90 days within which the Tribunal is required to draw up a statement of the case and refer it to the High Court, is not applicable to the receipt of the application requiring the Tribunal to make a reference as the terminus ad quem of the running of 60 days; in other words, the receipt of the application by the Tribunal within the period of limitation is, in our view, the sine qua non of its being required to state a case.
If the postulate in the Orissa case that the effect of sub-section (1) of Section 66 read in the light of rule 7, is to permit the assessee to send his application to the Registrar or the authorised officer by registered post by merely posting it, he will be deemed to have done all that is required off him to do, subject to the receipt of the application in the ultimate by the Tribunal, is valid and correct, then the terminus ad quem of the 60 days has been made dependent upon the receipt of the application by the Tribunal. Again if the application is not delivered at all by being lost in transmission, logically it would follow from the aforesaid postulate that no application requiring the Tribunal to state a case has been made within the meaning of sub-section (1) of Section 66. In other words, the ultimate receipt of the application has been made a condition precedent of the Tribunal being required to refer a case, even though it may have been required long after 60 days prescribed by the section had in fact expired. In our view such a position could not have been contemplated by the Legislature and there is no reason why sub-rule (2) of rule 7 cannot be made applicable to applications under sub-section (1) of Section 66.
We are also unable to agree with the analogy, called in aid by the learned Judges of the Orissa High Court in the aforesaid decision, of acceptance of an offer by post under the Indian Contract Act, being made applicable to applications under sub-section (1) of Section 66.
Meeting the argument in the Orissa case that sub-rule (2) of Rule 7 of the Appellate Tribunal Rules has to be omitted in its application to petitions under sub-section (1) of Section 66, Hidayatullah, J., (of Nagpur High Court) delivering the judgment of the Bench in the case of Motilal Hiralal Shisodia Firm v. Commissioner of Income-tax. C. P. and Berar, observed at page 101, after dealing with Rules 7, 8 and 36 of the Appellate Tribunal Rules, that : "There is, however, a clear warning in sub-rule (2) that in case the post is chosen as the venue, the presentation shall be on the day the appeal reaches and in the case of an application the Tribunal shall be deemed to be required (using the phraseology of the Act) only when the application reaches the Tribunal. There is no warrant whatever for omitting sub-rule (2) in this context, particularly when Rule 36 makes no such exception".
In our view, the word mutatis mutandis does not contemplate the deletion of any of the provisions of the rules or sub-rules specified in Rule 36, as otherwise it would be easy to merely specify the sub-rule which was applicable, i.e., sub-rule (1) of Rule 7. All that is contemplated by Rule 36 is to apply the rules specified therein only with such changes as are necessary to make them applicable to applications under sub-section (1) of Section 66. In this case even the requirements of either sending the application through registered post or the application being in the prescribed form have not been complied with by the assessee.
Having regard to all these facts we are clearly of opinion that the Appellate Tribunal was right in holding that the application was barred by limitation. The petition is dismissed with costs, which we assess at Rs. 30.