POPSING RICE MILL Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS arises out of an application made to this Court, under sub -section (3) of Section 66, Indian Income Tax Act, 1922, complaining against the correctness of the Appellate Tribunal decision dated November 9, 1948, that the assessee application, under Section 66(1), to the Tribunal to refer a question of law said to arise out of its order dated November 19, 1947, was time -barred by 3 days, and that the Tribunal has no powers to condone the delay. The circumstances in which the case arises are as follows : -

(2.) THE assessee was served with notice of an order under sub -section (4) of Section 33 of the Act on December 4, 1947. He having intended to require the Appellate Tribunal to refer to the High Court a question of law arising out of such order within 60 -days of the date of service of the notice of the order made a deposit of Rs. 100 in the Cuttack Treasury on February 2, 1948, being 60th day from the date of such service, by Chalan No. 7; that very day he had sent an application, requiring the Tribunal to refer the question, accompanied with the Chalan by registered post or the officer appointed in that behalf of February 5, 1948, the day which was obviously 3 days beyond the 60th day; the Tribunal rejected the petition as barred by limitation.

(3.) WE have to determine, under -sub -section (3), as to the correctness of the Appellate Tribunal decision. The law, on the point, consists of the sub -section (1) and (3) of Section 66 Rules 7 and 8 read with Rule 36 of the Income Tax Appellate Tribunal Rules, 1946. Accordingly sub -section (1) of the section the assessee is to require the Appellate Tribunal by application accompanied by a fee of Rs. 100 to refer any question of law arising out of its order. This requirements is available, as a matter or light to the assessee or the Commissioner, as the case may be, whosoever is aggrieved by it. The requirement is to be conveyed on an application addressed to the Tribunal. Under the Rules, the Tribunal discharges its functions by a Bench of two members. The Bench holds its sitting either at its headquarters or at such other places as it may consider convenient. In the present case, the receiving office of an application or appeal is at Madras, and the officer authorized to received is either the Registrar or any other officer authorized by him. Rules 7 and 8 inter apply to a memorandum of appeal to the Tribunal. Such a memorandum may be presented to the Registrar or sent by registered post addressed to the Registrar or such office at any such appointed place. In cases, where memorandum of appeal is sent by registered post, it is deemed to have been "presented" to the registrar or the authorized officer on the day on which it is received in the office. This rule is extended, in its operation to an application under sub -section (1) of the Section by Rule 36 and the extension is mutatis mutandis, that is, subject to necessary changes in its detail. In other words, necessary change in the readings of rule 7 will have to be made in its application to a case falling under sub -section (1) of Section 66. The result is that an application under the sub -section can be made to the Tribunal by its being presented by him applicant in person or by an agent to the Registrar or the authorized officer or it can be made by sending by a registered post addressed to the officer concerned. The question for determination is whether "the date of presentation" or "the date of posting" will be essential date for the purpose of limitations. But for sub -section (2), there shall be no difficulty in pronouncing that one of the modes of application being its transmission by registered post, it shall be deemed to have been "made" as soon as its is posted. According to sub -section (2), in cases of transmission by registered post, "presentation" takes effect on the date of receipt in the appropriate office. If "presentation" is the essentially which is aimed at in order to constituted "require by application made to the Tribunal" within the meaning of sub -section (1) of Section 66, there is no escape from the conclusion that the concerned application was made on the 5th February and thus beyond the period of limitation. I have already said that Rule 7 does not apply to the instant case of an application in terms but, subject to necessary changes in detail (mutatis mutandis). Primarily, in the case of an memorandum of appeal, actual presentation is a crucial event, being the terminus ad quem of the running of limitation. In this connection we may refer to Section 33 which deals with the subject of appeal to the Appellate Tribunal. Sub -section (1) of the Section reads : - "Any assessee objecting to an order passed by an Appellate Assistant Commissioner under Section 28 or Section 31 may appeal to the Appellate Tribunal within sixty days of the date on which such order is communicated to him." Sub -section (2A) must be read in association with it. It runs as follows : - "The Tribunal may admit an appeal after the expiry of the sixty days referred to in sub -section (1) and (2) if it is satisfied that there was sufficient cause for not presenting it within that period."