MUTHUSAMY PILLAI Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) THESE two writ petitions can be dealt with under a common order. I will now refer to the facts in Writ Petition No. 5156 of 1987. The petitioner is an assessee under the First Income-tax Officer, Tuticorin. In a partition which took place in the petitioner's family in the year 1953, he was allotted four acres of land at Palayamkottai Road, Tuticorin. He sold the same for a sum of Rs. 2,70,000 by a registered document dated March 24, 1980. Action was taken under section 147(b) of the Income-tax Act, 1961, hereinafter referred to as "the Act". The assessment was reopened after obtaining the previous approval of the Inspecting Assistant Commissioner. On this transaction, the petitioner paid a sum of Rs. 11,000 as capital gains tax. On revision, the Income-tax Officer estimated the market value of the land at Rs. 8,000 per acre as on January 1, 1964. The petitioner went on appeal before the Income-tax Appellate Tribunal and in the appeal, the market value was increased from Rs. 8,000 to Rs. 10,000 per acre. He preferred a reference application under section "56(1) of the Act to the Income-tax Appellate Tribunal. In filing the said application, there was a delay of 113 days. The reason for the delay, according to the petitioner, was his heart ailment. The Tribunal held that the application was time-barred and the reference application itself was rejected on March 11, 1987. It is, in these circumstances, that W.P. No. 5156 of 1987 has been preferred to quash the said order while W.P. No. 5157 of 1987 is for a declaration that section 256(1) of the Act in so far as it prescribed a time limit of 60 days in the main section and 30 days in the proviso, is invalid and ultra vires the Constitution of India.

(2.) MR. A. Subramanya Rao, learned counsel for the petitioner, would urge that the order of the Tribunal is liable to be set aside as the view taken by it is wrong. There is no express exclusion of the Limitation Act. Therefore, the Tribunal ought to have looked at it from the point of view of section 5 of the Limitation Act. As a matter of fact, a Division Bench of this court, in dealing with the rent control legislation, held in the case reported in Rethinasamy v. Komalavalli [1982] 2 MLJ 406 that unless there is an express exclusion of the Limitation Act, section 5 could be invoked.