Bombay High Court
Motilal Hiralal Shisodia Firm vs Commissioner Of Income Tax, C.P. And ... on 24 February, 1950
Equivalent citations: AIR 1951 NAGPUR 224
ORDER Hidayatullah, J.
1. This is an application under Section 66 (3) of the Income-tax Act, 1922. The applicant had previously made an application to the Income-tax Appellate Tribunal, Bombay, requiring the Appellate Tribunal to refer to the High Court certain questions of law. The Appellate Tribunal (A Bench) dismissed the application as in its opinion the application was barred by time. The present application is made to request the High Court to send the case back to the Appellate Tribunal requiring it to treat the application as one made within the time allowed by Sub-section (I) of Section 66.
2. The appeal of the applicant was decided on the 28th June, 1949, and notice of the order of the Appellate Tribunal under Section 33(4) of the Act was served on the applicant on the 23rd July, 1949. Admittedly, the applicant had time till the 21st September, 1949, within which to apply to the Appellate Tribunal under Section 66 (1) of
3. The applicant posted his application on the 20th September, 1949, at Darwha, and it reached the Registrar, Appellate Tribunal, on the 24th September, 1949, i.e., on the sixty-third day. The application was heard on the 18th November, 1949, and was dismissed as barred by time.
4. The Appellate Tribunal held that the Act gave no authority to the Tribunal to condone delays in the filing of applications under Section 66(1) of the Act.
5. That the statement of the law by the learned Members of the Tribunal is impeccable cannot be gainsaid. Section 5 of the Indian Limitation Act, though applied to applications to the High Court by Sub-section (7 A) of Section 66 of the Act, has not been applied to applications under the first sub-section of that section. Nor is there any provision similar to the one to be found in Section 30 (2) or Section 33 (2A) of the Act, In the absence of any provision conferring this power on the Tribunal, the Tribunal could not but hold that the application was barred by time. Authority for such an obvious proposition is not needed but reference may be made to Bansilal v. Income-tax Commissioner , Commissioner of Income-tax, Madras v. Ganga Raju (1926] I.L.R. 50 Mad. 335, Income-tax Commissioner v. Sevugan ; see also Ganesh Prasad v. Income-tax Commissioner and Merchants Mohini Flour Mills, Co., Ltd. v. Commissioner of Income-tax, Punjab .
6. This would have been the end of the case but for an argument based upon Popsing Rice Mitt v. Income-tax Commissioner, Bihar and Orissa , in which on similar facts a contrary view was expressed by Bay C.J., and Panigrahi, J. In that case too the application was sent by post and arrived at the Madras office of the Tribunal three days too late. The only difference between the present case and the Orissa case is that while in the Orissa case the application was posted on the 60th day the application in this case was posted on the 59th day. In neither case could the applicant hope that in the ordinary course of business the application would have reached in time. Naturally, the opinion of the Orissa High Court was pressed upon us for our acceptance. I have carefully considered the opinion of the learned Judges and find myself unable to agree with them.
7. According to the learned Judges Section 66 (1) must be read with Rules 7, 8 and 36 of the Appellate Tribunal Rules, 1946. By Rule 36, Rules 7 and 8 of the Rules have to be applied mutatis mutandis to applications under Section 66 (1). The learned Judges notice two differences at the very start in the matter of appeals and applications. The first is that in the case of applications "actual presentation is not in the picture", and whereas presentation of an appeal is the terminus ad quern of the limitation, the receipt of an application is merely the terminus a quo of the period of 90 days during which the Tribunal has to make a reference to the High Court. According to the learned Judges the date of the "making of the application" and the date of requiring the Appellate Tribunal to state a case need not be "coeval", otherwise the section would have been framed as Sub-section (2 A) of Section 33. The section and the rules accordingly contemplate a possibility of delay, and therefore in reading Rule 7 mutatis mutandis one should read it without Sub-rule (2) in connexion with applications under Section 66 (1). The learned Judges read Sub-section (1) of Section 66 of the Act " in the light of Rule 7 " and also hold that the rules are "not imperative". The learned Judges call in aid the analogy of acceptance of an offer by post and hold in the result that since the Act does not prescribe any mode of computation, the time occupied "in transmission of the requirement by application" should not be computed as a part of the period of limitation of 60 days. With all due respect to the learned Judges neither their conclusion nor their reasons are acceptable to me.
8. I begin first by quoting the relevant sections of the Act, and the Rules of the Appellate Tribunal. Section 66 (1) reads as follows:
Within sixty days of the date upon which he is served with notice of an order under Sub-section (4) of Section 33 the assessee...may, by application in the prescribed form,...require the Appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a statement of the case and refer it to the High Court:....
9. Reference may be made also at this stage to Section 67A of the Act, which reads:
In computing the period of limitation prescribed for an appeal under this Act or for an application under Section 66, the day on which the order complained of was made, and the time requisite for obtaining a copy of such order, shall be excluded.
10. Rules 7, 8 and 36 read as follows:
7. (1) A memorandum of appeal to the Tribunal shall be presented by the appellant in person or by an agent to the Registrar at the headquarters of the Tribunal at Bombay, or to an officer authorised in this behalf by the Registrar, or sent by registered post addressed to the Registrar or to such officer. -
(2) A memorandum of appeal sent by post under Sub-rule (1) shall be deemed to have been presented to the Registrar...on the day on which it is received in the office of the Tribunal at Bombay....
8. The Registrar...shall endorse on every memorandum of appeal the date on which it is presented, or deemed to have been presented under Rule 7....
36. Rules 7, 8...shall apply, mutatis mutandis, to an application under Sub-section (1) of Section 66.
11. In reading Rules 7 and 8 mutatis mutandis every effort should be made to adapt every part of these rules for the purposes of the application. It is not permissible to leave out any portion arbitrarily. The Rules do not say that Sub-rule (2) of Rule 7 should be left out, and hence every effort must be made to see that that sub-rule also can be adapted suitably. Reading Rules 7 and 8 in the light of Rule 36 we get the following result:
7. (1) An application under Section 66 (1) of the Act shall be presented by the applicant in person or by an agent to the Registrar or sent by registered post addressed to the Registrar....
(2) An application under Section 66 (1) of the Act sent by post under Sub-rule (1) shall be deemed to have been presented to the Registrar...on the day on which it is received in the office of the Tribunal at Bombay.
8. The Registrar...shall endorse on every application under Section 66 (1) the date on which it is presented....
12. It is true that the word "presentation" is not used in Section 66 (1). But when the legislature fixed a period of 60 days in which the asses-see (or the Commissioner) may "require" the Tribunal to refer a question of law, the legislature certainly had in mind a terminus ad quem. of the period. It is an elementary rule of construction of statutes that the judicature in their interpretation have to discover and act upon the mens or sententia legis. Normally, Courts do not look beyond the litera legis, and in this case it is not necessary to do any more.
13. The section speaks of sixty days, and the starting point is certain I and there can be no dispute. Since the application under Section 66 (1) is to " require " the Tribunal to refer a case the obvious construction is that the " requiring " must be within 60 days. Now a person is " required " to do something only when he knows of it and not while the letter is lying in a post office unknown to him, The Tribunal is "required" to refer the questions when the application reaches the tribunal and not before. The sub-section nowhere uses the phrase " require by an application made within 60 days " which has been expounded in the Orissa High Court. The sub-section read grammatically means only that the Tribunal must be " required " within 60 days to refer the questions, and then the Tribunal must within 90 days make the reference. There is really no hiatus between the terminus ad quern of the limitation for applications and the terminus a quo of the 90 days in which the reference has to be made. For this second period the terminus a quo is also the receipt of the application. The section, in my opinion, is quite clear and does not admit of any other construction.
14. Coming now to the Rules it is clear that these rules are framed under Section 5A (8) of the Act and merely regulate the procedure of the Tribunal. It is impossible to read the Act " in the light " of such rules. But even if the rules are taken into account there is no inconsistency.
15. Bearing in mind that the rules in question merely regulate the procedure, they cannot override the statute. If the Tribunal had not framed Rules 7, 8 and 36 the applicants would have had to grope in the dark about the procedure to be followed. The rules merely give the alternative modes which can be resorted to. One such mode, conceived in the interest of the appellants or applicants, as the case may be, is that they can send the memorandum of appeal or the application by post. There is, however, a clear warning in Sub-rule (2) that in case the post is chosen as the venue the "presentation " shall be on the day the appeal reaches and in the case of an application the Tribunal shall be deemed " to be required " (using the phraseology of the Act) only when the application " reaches " the Tribunal. There is no warrant whatever for omitting Sub-rule (2) in this context, particularly when Rule 36 makes no such exception.
16. An argument from analogy is apt to be misleading. The learned Chief Justice in applying the analogy of contracts has obviously in mind the decision of the Court of Appeal in Household Fire Insurance Company v. Grant (1879) 4 Ex. D. 216. That decision itself was not unanimous and was in conflict with several earlier decisions. What may be found to be convenient in the domain of contracts, regard being had to mercantile usage, is not necessarily of consequence in other spheres. I entirely agree with the learned Chief Justice that cases of hardship may arise, but equally there may be cases in which as in the Orissa case where the letter was posted on the 60th day or here where the letter was posted on the 59th day) the conduct of the applicants may be far from diligent. Letters have been known to be delayed for months in the post. In the Court of Appeal case the letter never, reached Grant and yet the contract was held to be complete. 'If the analogy is carried further, an applicant can prove after years that he had made an application and can claim redress even though the application never reached the Tribunal. Why such a case should be distinguished from those cases in which the letter is merely delayed is not, clear, and in principle it cannot be. The answer to such problems is to treat the entire rule (Rule 7) as applicable to applications and to apply the limitation contained in Section 66 (1), which as I have shown applies. In my opinion even the Tribunal cannot by rules extend the 1 period, and the remedy is only with the legislature, as was pointed out by Chagla, C.J., in the Bombay case referred to above. I agree with Chagla, C.J., that some amendment is absolutely necessary, but 1 till that is done Courts must give effect to the law as it stands.
17. Beneficial construction has its own limitation. An argumentum ab inconvenienti is only to be resorted to when the law is ambiguous. Otherwise, as was stated by Bobde, J., in this Court in Gulabsingh v. Nathu (1944) I.L.R. 1944 Nag. 419, 421: "Courts have not been given power to devise their own technique for saving claims from the bar which the Statutes of Limitation create."
18. This also follows from the observations of their Lordships of the Privy Council in General Accident Fire and Life Assurance Corporation Ltd. v. Janmahomed (1941) I.L.R. 1941 Bom. 202, 208 P.C. and Maqbul Ahmad v. Pratab Narain Singh (1935) I.L.R. 57 All. 242, 250 P.C.
19. I would, therefore, dismiss this application without notice to the other side.
Kaushalendra Rao, J.
20. I agree.