S P JAISWAL Vs. COMMISSIONER OF INCOME-TAX

JUDGEMENT

(1.) THIS application has been filed by Shri S. P. Jaiswal (hereinafter referred to as the assessee) under Section 66 (3) of the Income-tax Act, 1922 (hereinafter called the 1922 Act), read with Section 256 of the Income-tax Act, 1961 (hereinafter referred to as the 1961 Act), and under Article 227 of the Constitution. The only facts which are necessary to be noticed for deciding this application are that after the assessee's appeal to the Income-tax Appellate Tribunal for the computation of income-tax for the assessment year 1946-47 had been disposed of by the order of the Tribunal, dated February 15, 1963, an application under Section 66 (1) of the 1922 Act (copy Annexure " A " to this application) was filed by the assessee for referring two questions of law to this court. It is not disputed that the said application was filed 21 days beyond the time prescribed for moving the Tribunal for making such a reference. At the hearing of the application it was conceded on behalf of the assessee, and indeed it is not denied even now, that the application was barred by time. The assessee, however, invoked Section 5 of the Indian Limitation Act, 1908, for condonation of the delay on certain grounds with the merits of which we are not concerned in these proceedings. The Tribunal by its order, dated September 16, 1963 (Annexure " B "), held that Section 5 of the Limitation Act did not in terms apply to an application under Section 66 (1) of the 1922 Act and that inasmuch as the benefit of Section 5 of the Limitation Act had not been extended to an application under Section 66 (1) of the 1922 Act, the benefit of that provision could not be invoked by the assessee. In the circumstances, the Tribunal held that the application for reference was barred by limitation and the Tribunal proceeded to dismiss it on that short ground " without considering it on merits ".

(2.) IN the present application a prayer has been made to direct the Income-tax Appellate Tribunal, New Delhi, to treat the assessee's application for reference as having been filed within time and to direct the Tribunal to make the reference in question. The application has been opposed on behalf of the Commissioner of Income-tax.

(3.) THE first question which calls for decision is as to the provision of law under which the present application can be entertained by this court. It was fairly and frankly conceded by Mr. Hira Lal Sibal, the learned counsel for the assessee, that Sub-section (3) of Section 66 of the 1922 Act cannot be invoked by his client as the decision of the Tribunal to the effect that the application for reference was barred by time, is indeed unassailable and it is an admitted fact that the application was in fact barred by time. Subsection (3) of Section 66 does not authorise the assessee or the Commissioner of Income-tax to move this court on any ground other than the one mentioned in that provision, i. e. , on the ground that the decision of the Income-tax Appellate Tribunal about the petition being barred by time is not correct on merits. The only relief which this court can grant under that provision is to direct the Tribunal to treat the application under Sub-section (1) of Section 66 as having been made within time. That relief, it is conceded, cannot possibly be claimed or granted in the instant case.