1. This is a petition by the firm Khushi Ram Raghunath Sahai of Jullundur under Section 66 (3), Income-tax Act. The only question involved is whether the petitioner firm's application under Section 66 (1) made to the Income-tax Appellate Tribunal at Delhi was rightly rejected as barred by time.
2. The decision of the Appellate Tribunal regarding the petitioner's assessment was delivered on 29-8-1950 and a copy of this decision was received by the petitioner on 28-9-1950. Their application requiring the Appellate Tribunal to refer certain questions of law arising out of the order was posted at Amritsar on 27-11-1950, and arrived in the office of the Appellate Tribunal on 28-11-1950. Section 66 (1) reads: (His Lordship after quoting the provisions stated). The relevant rules of the Appellate Tribunal are Rules 7 and 36 which are in the following terms:
'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.
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.'
There would seem to be no doubt that in this context the phrase 'mutatis mutandis' has its usual meaning, that is, that only such verbal changes are to be made in the rules mentioned in Rule 36 as would make the principles embodied in these rules applicable to applications under Sub-section (1), Section 66. The only change which appears to me to be necessary is the substitution of the words 'application under Sub-section (1), Section 66' for the words 'memorandum of appeal' wherever they occur. The net result would thus appear to be that anyone who wishes to move the Tribunal under Section 66 (1) is required to post his application in time for it to reach the office of the Tribunal within sixty days of the receipt by him of a copy of the appellate order of the Tribunal and, indeed, I should hardly have thought that the point admitted of any doubt, or was even capable of argument, if the learned counsel for the petitioner had not produced a decision of the Orissa High Court to the contrary.
This is the case of -- 'Sri Popsing Rice Mills v. Commissioner of Income-tax, B. & O.', AIR 1949 Orissa 53 (A). In that case, an application under Section 66 (1) was posted to the Tribunal on the 60th day and it reached the office to which it was addressed three days later, and thus was prima facie filed three days after the expiry of the period of limitation. The application was, however, held by Ray C. J. and Pani-grahi J. to be within time. I regret that I have not been altogether able to understand the reasoning of the learned Judges in coming to this conclusion, but it would seem that they did not regard the words 'within sixty days' and 'by an application in the prescribed form' as the operative words of Section 66 (1), but instead regarded the word 'require' as the operative word, and- by drawing some analogy with the Law of Contract as far as it relates to the posting of an acceptance of an offer, seem to have concluded that the 'requirement' in Section 66 (1) was completed by the posting of the application. They have in this manner extended the meaning of the phrase 'mutatis mutandis' in Rule 36 so as to exclude altogether the application of Sub-rule (2), Rule 7 to applications under Section 66 (1) of the Act.
It does not, however, seem to me that by any stretch of imagination the use of the phrase 'mutatis mutandis' is capable of being so gxiended as to exclude altogether the provision in the rules regarding what constitutes the date of institution when either an appeal or an application under Section 66 (1) is filed through the post, and with due respect I consider that the view taken by these learned Judges in this matter is incorrect. This view of mine is also spared by Hidayatullah and Kaushalendra Rao JJ., in -- 'Motilal Hiralal v. Commissioner of Income-tax, C, P. and Berar', AIR 1951 Nag 224 (B), in which 'they also have expressly dissented from the view of Ray C. J. and Pani-grahi J. I thus consider that the petitioner's application under Section 66 (1) was rightly dismissed as barred by time by the Tribunal and would accordingly dismiss the present petition with costs which. I assess at Rs. 200/-.
3. I am of the same opinionand there is nothing useful that I am to add.