B.C. Mitra, J.
1. This is an application for an order that the statement of case be amended by substituting the names of Nawabjadi Kamrunnessa Khatoon and Nawabjadi Badrunnessa Khatoon in the place and stead of Nawab Musharaf Hossain, since deceased, also for an order that the delay in filing the paper book be condoned and that the time to file the paper book be extended by three months from the date of the order to be made herein.
2. The assessee in this case was Nawab Musharaf Hossain who filed the return on 19th July, 1957, for the assessment year 1955-56. Subsequently, revised returns were filed on October 10, 1958, for the assessment years 1956-57 and 1957-58. The Income-tax Officer in making the order of assessment did not accept the assessee's contentions and assessed 1/4th share of the income of the estate less statutory allowance of Rs. 4,500. On appeal, the Appellate Assistant Commissioner held that one of the members of the association of persons had no definite or determined share of income from the estate and, therefore, income could be assessed only in the hands of the said association of persons. On further appeal to the Income-tax Tribunal by the department the Tribunal by a consolidated order dated May 18, 1964, rejected the department's contentions and dismissed the appeals. Thereafter, the Commissioner made an application under Section 66(1) of the Indian Income-tax Act, 1922, requiring the Tribunal to draw up the statement of case and refer several questions to this court. Out of five questions required to be referred, the Tribunal by an order dated September 9, 1966, referred only two questions. Thereafter, the Commissioner made these separate applications in respect of each assessment year under Section 66(2) of the 1922 Act, requiring the Tribunal to draw up a further statement of the case and refer the three remaining questions for the opinion of this court. This court directed the Tribunal to draw up a consolidated statement of the case concerning three references and refer the questions of law set out in this order. In compliance with the order of December 24, 1968, the Tribunal submitted a consolidated statement of case to this court. Thereafter, an order was made on April 9, 1970, by which this court directed service of consolidated index of papers on the respondent within three weeks from the date of the order and further directed filing of consolidated paper books within three months.
3. On February 17, 1972, the references appeared in the special list and since the assessee had died, this court directed that the petitioner should make a formal application for substitution of the heirs and legal representatives of the deceased. This application has been made pursuant to this direction.
4. Learned counsel for the applicants contended that in the reference under Section 66(2) of the 1922 Act, the heirs and legal representatives of the deceased have already been brought on the record but in the references under Section 66(1) of the said Act the name of the deceased still appears. It was submitted that on March 25, 1970, the Commissioner imade an application for consolidation of References Nos. 202, 210 and 215 of 1967 with Reference No. 169 of 1967. On this application an order was made on March 31, 1970, by which this court allowed the Commissioner's application for consolidation. This order for consolidation has become final and is binding on the parties.
5. Learned advocate for the respondent, on the other hand, contended that this application is barred by Article 137 of the Limitation Act. He further argued that the Code of Civil Procedure applied and, therefore, Order 22 of the Civil Procedure Code was attracted and since an application has not been made within time the application has abated and no order can be made as prayed for. He also relied on Rule 6 of the Rules of this court under the Indian Income-tax Act and submitted that this court could not extend or enlarge the time for filing of the paper books.
6. Our attention was drawn to a Bench decision of this court in Commissioner of Income-tax v. Gourishankar Lal Singha : 63ITR711(Cal) in which it was held that the provisions contained in Order 22 of the Civil Procedure Code relating to abatement of proceedings when a party to a suit died and his legal representatives were not brought on the record within the prescribed period was not applicable to references made to the High Court under Section 66 of the Indian Income-tax Act, 1922. It was further held that an application by the department for leave to appeal to the Supreme Court against the order of the Appellate Tribunal made on a reference under Section 66 of the said Act did not abate merely because the assessee had died pending the proceedings and the application to substitute his legalrepresentatives as parties in his place was not made before the expiry of 90 days from the death of the assessee. Relying on this decision it was argued by the counsel for the applicant that there was no bar in making the order prayed for as Order 22 of the Civil Procedure Code did not apply. As against this, however, our attention was drawn to another Bench decision of the Mysore High Court in Commissioner of Income-tax v. N. A. Mandagi : 63ITR173(KAR) . In that case it was held that when a person died and assessment had to be made with respect to his income his estate must be properly represented before the Income-tax Officer and there can be such representation only if all his representatives are served with the notice under Section 24B of the Indian Income-tax Act, 1922.
7. It seems to us, however, that the decision of the Mysore High Court had no application to the facts of this case inasmuch as the assessee was alive at the time when the assessment order was made. There is no question of an assessment order having been made against an assessee who is dead. Furthermore, it is to be noticed that the assessee was alive on the date on which the Appellate Tribunal drew up the statement of case and referred two questions out of five to this court. Therefore, it is not a case where the Tribunal had made the order at a time when the assessee was himself dead. The order of the Tribunal was made on September 9, 1966, and the assessee died on November 14, 1966. The Reference No. 169 of 1967 under Section 66(1) of the Act was, however, registered in this court after the death of the assessee hut that to our mind is altogether immaterial as the assessee was alive at the time when the Tribunal made the order on September 9, 1966.
8. It seems to us that since there has been an order for consolidation of the references and since that order was made upon notice to the respondents in whose presence the order was made, it is not open to the respondents at this stage to contend that the Reference No. 169 of 1967 under Section 66(1) of the said Act is incompetent. The order of consolidation is an order made by this court and binds both the parties and three of the four references, namely, Nos. 202, 210 and 215 of 1967, stand consolidated with Reference No. 169 of 1967. In our view the order of consolidation made by this court was fully justified inasmuch as two questions were referred in one reference and three others arising out of the same matter were referred in the other reference and, therefore, there is no reason why the references should be heard by this court separately.
9. With regard to the contentions of counsel for the respondent that this court has no power under Rule 6 of the Rules of this court to extend the time for filing the paper books it seems to us that there is no merit in this contention. Rule 46 of Chapter 38 of the Original Side Rules of this courtempowers the court to enlarge or abridge the time appointed by the rule or fix by any order enlarging time for doing any act or taking any proceeding upon such terms as the justice of the case may require. Therefore, in an appropriate case, the court has ample power to enlarge the time for filing the paper books. We must notice, however, that the department was negligent in the matter of making this application which in our view could have been made much earlier. There is no justification for making this application after the lapse of nearly three years. But having regard to the facts of this case we make an order in terms of prayers (a), (b), (c) and (d) of the petition.
10. The applicant, however, should pay to the respondent the costs of this application.
P.B. Mukharji, C.J.
11. I agree.