GROVER J. - A petition dated 24th September, 1959, was filed under section 66(2) of the Income-tax Act by the assessee praying that the Income-tax Appellate Tribunal be required to state the case and refer the question of law which arose out of the order of the Tribunal to this court. In this petition the only respondent impleaded was the Income-tax Appellate Tribunal, Delhi Bench. The Commissioner of Income-tax was not made a party at all. When the matter was set down for hearing before us, it was pointed out that the Commissioner had not been made a party. The learned counsel for the assessee prayed for an adjournment for a fortnight to enable him to make a petition for impleading the Commissioner. This adjournment was granted on December 12, 1960. A petition was filed on December 21, 1960, praying that the Commissioner of Income-tax be allowed to the impleaded as a party. This petition was not supported by any affidavit nor was it accompanied with any application under section 5 of the Indian Limitation Act for extension of time because admittedly this petition was filed after a lapse of six months from the date of the order of the Tribunal under section 66(1).
Mr. Awasthy who appears for the Commissioner has pointed out that according to the rules contained in Chapter 7-B, Volume V, of the Rules and Orders of this court, when an application is made under section 66(2) or section 66(3), it is the Commissioner alone who is to be impleaded as a respondent in the first instance. Rule 4 provides that if the court hearing the application does not reject it in limine, a notice shall be issued to the assessee or the Income-tax Commissioner to show cause against the application. Rule 6 is to the effect that in the event of the court requiring the Income-tax Appellate Tribunal to state and to refer a case, notice of the order containing the question or questions of law on which the case is to be stated and to be referred shall be sent to the Income-tax Appellate Tribunal. Thus, according to the rules, it was necessary in the first instance when the petition was filed under section 66(2) to implead the Commissioner of Income-tax as a respondent and it was unnecessary to make the Income-tax Appellate Tribunal a party. In the present case it would have been only after hearing the Commissioner that a notice would have been ordered to be sent to the Income-tax Appellate Tribunal if this court came to the conclusion that the Income-tax Appellate Tribunal ought to state and refer the case to it. The petition, as filed, was defective as the Commissioner was not impleaded, who alone was the necessary party. The petition for impleading him having been made after the lapse of a period of six months, it was clearly barred by time and no application having been made under section 5 of the Limitation Act for extension of limitation, the petition must be dismissed as being barred by time. Even otherwise, there is no material in any affidavit which has been filed along with the petition from which we can come to the conclusion that it is a fit case in which limitation should be extended.
In the result, this petition is dismissed. The department shall be entitled to costs which we assess at Rs. 100.
D. K. MAHAJAN, J. - I agree.