BACHULAL AND COMPANY Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS is a petition under Section 66(3), Income -tax Act, 1922, the petition of the assesses under Section 68 (1) of the Act requesting the Income -tax Appellate Tribunal, Calcutta Bench, to state a case to the High Court having been rejected as barred by limitation by the order of the said Tribunal on 23 -4 -1952. The order of the Tribunal dated 30 -10 -1951 passed under Section 33(4) of the Act was served on the petitioner on 3 -11 -1951. The period of limitation of 60 days for filing application under Section 66(1) of the Act expired on 2 -1 -1952. The application under Section 66(1) was received by the office of the Tribunal on

(2.) -1 -1952 by post, that is, within time. Under the provisions of Section 66(1) this application was to be accompanied by the requisite fee of Rs. 100/ -. This fee of Rs. 100 was however received by money order by the Office of the Tribunal on 4 -1 -1952. The Tribunal consisting of two members (one Judicial member and the other Accountant member), relying upon a decision of their Lordships of the Allahabad High Court, reported in - - 'Hajee Mahboob v. Commr. of Income, U.P.' : [1950]18ITR72(All) (A) rejected the petition of the petitioner as barred by limitation. Their Lordships of the Allahabad High Court observed;

(3.) INDEED here the application under Section 66(1) reached the Tribunal on 2 -1 -1952, that is, within time; but the requisite fee which, under the law, is to accompany the application, reached the Tribunal by money order on 4 -1 -1952. The petitioner relies upon the position that he had sent the money through money order on 31 -12 -1951 that is, within the period of limitation and as such his application is within time. On a close scrutiny of the facts of the case, we find that the basic fact which will raise the above question of law has not been proved in the present case by the petitioner. It is not proved that in fact, the petitioner had sent the requisite fee of Rs. 100 on 31 -12 -1951 by post. Neither the postal receipt granted to the remitter at the time of remittance nor any Other record of the Post Office is produced to show that in fact the petitioner had sent the requisite fee for Rs. 100/ -on 31 -12 -1951. The only material which is intended to be relied upon by the petitioner, is para. 7 of the affidavit 'that the fee of Rs. 100/ - was sent by money order on the same day, i.e., on 31 -12 -1951'. This affidavit has been sworn by one Satrughana Swain (a clerk of the Advocate) for the petitioner, and the deponent states in the affidavit that the facts are true to his knowledge based on records. There is no affidavit even to the effect that it was he or the petitioner who sent the money order. It is quite possible that the money was sent by telegraphic money order on 4 -1 -1952, that is, beyond the period of limitation. In our view, in the absence of proof of the basic fact that the money was sent through the Post Office before the expiry of the period of limitation the aforesaid position of law does not arise at all for the determination of the present petition under Section 66(3) of the Act nor do we, in the circumstances, feel called upon to express any opinion on the question of law.