COMMISSIONER OF INCOME TAX Vs. VAREEDKUTTY P C

JUDGEMENT

(1.) This is an application to review an order passed by this Court on an application under S.66(3) of the Income Tax Act treating the same as an original petition filed under Art.226. The respondent to this review petition filed an application under S.66(1) of the Income Tax Act before the Income Tax Appellate Tribunal on 18-4-1966 praying for referring certain questions of law arising out of its order dated 21-10-1965. The Tribunal found that the application was barred by limitation. It therefore dismissed the same. The respondent bad filed another application before the Tribunal stating that if time was calculated from the date of its order, namely, 14-3-1966, passed on the application filed by the respondent before it under S.35 of the Income Tax Act, the application under S.66(1) would be in time. That application was also dismissed by the Tribunal. This Court treating the application filed by the respondent under S.66(3) as a petition under Art.226 upheld the contention of the respondent that S.5 of the Limitation Act was applicable to a proceeding under S.65(1) of the Income Tax Act, and directed the Tribunal to consider the question whether there was sufficient ground for condoning the delay in filing the application under S.66(1) of the Act.

(2.) The review petitioner contends that S.5 of the Limitation Act is not applicable to a proceeding before the Tribunal as the Tribunal is not a court, and there fore, this court committed a patent error of law in saying that S.5 is applicable to a proceeding under S.66(1). We think that our order is vitiated by an error of law. A reading of S.5 of the Limitation Act would be sufficient to show that an application under that section will lie only for condonation of delay in filing an application or appeal before a court, and that S.5 cannot apply to a proceeding before a Tribunal like the Income Tax Appellate Tribunal. As we overlooked the clear provision of S.5 in passing the order dated 7-6-1967, we set aside the order in review.

(3.) As S.5 of the Limitation Act is not applicable to proceedings under S.66(1) we see no merit in the writ petition. We, therefore, dismiss the writ petition, but make no order as to costs.