Find a Lawyer

Civil Reference No. 166 of 1954, decided on 4th October 1958.

, Ss. 59 & 66‑Time for making application for reference‑Extension‑Within competence of Tribu nal‑Appellate Tribunal Rules, 1948, r. 13 ‑ Application originally presented within time but on wrong form ‑Extension of time allowed.

Held, that there was no reason why under rule 13 of the Appellate Tribunal Rules, 1948 the Appellate Tribunal should not be competent to extend the time which, according to the rule, is left to its discretion. The purport of the rule was to allow time beyond the period of 60 days mentioned in section 66; for other wise there would be no object in inserting such a provision, since the assessee had the statutory right under section 66 to make an application within the 60 days.

Reading sections 59 and 66 together, a rule allowing the Tribunal to return an application made originally within time, but not on the prescribed form, for amendment so as to comply with the prescribed form and representation after the expiry of 60 days is not contrary to the intention of the Legislature.

Muhammad Ebrahim for Appellant.

Aziz for Respondent.

Date of hearing : 29‑9‑1958

A

preliminary point has been raised by Mr. Aziz on behalf of the Income‑tax Commissioner that the application for reference was time‑barred by section 66 of the Income Tax Act, and that the Appellate tribunal had therefore no jurisdiction to make this reference.

The facts material to this preliminary point are that the appel late order of the Appellate Tribunal was made on 27‑2‑1954, and that notice of the appellate order was served on the Assessee on 27‑3‑1954. The application for reference was received by the Appellate Tribunal on 19‑5‑1954. This application for reference Was made in a form contained in the income‑tax Manual, but this form though it remained in the Income‑tax Manual had in fact been superseded by another form notified on 18‑1‑1947 by the Central Board of Revenue. The Registrar of the Appellate Tri bunal addressed a letter to the Assessee on the 25th May 1954 as follows:‑

"With reference to the above reference application preferred by them to the Tribunal M/s Scindia Steam Navigation Co. Ltd., are hereby informed that the said application is not drawn up on prescribed form. A pony of the form prescribed for filing Reference Application to the Tribunal is enclosed herewith. The application should be drawn up on this form and resub mitted to this office in triplicate so as to reach here within the prescribed period of limitation".

The period of limitation prescribed in section 66 expired on the 26th May. A fresh application on the proper form was made on the 1^st June. On the 16th June 1954, the Registrar informed the Assessee that the application on the prescribed form had been received on 5‑6‑1954, that is, 10 days after the expiry of the pres cribed period of limitation, and that the question whether the original filing of reference was tantamount to valid presentation or was time‑barred would be first decided by the Bench' at the time of hearing.

On behalf of the Assessee an affidavit has been filed stating that the Appellate Tribunal decided that the reference was within time. Rule 13 of the Appellate Tribunal Rules, 1948 has been framed under section 59 of the Act which provides that the Central Board of Revenue may make rules for carrying out the purposes of the Act. Rules made under the section shall be pub lished in the Official Gazette and shall thereupon have effect as if enacted in the Act.

Rule 13 provides as follows :‑

"The Tribunal may reject a memorandum of appeal, if it is not in the prescribed form or return it for being amended within such time as it may allow. On representation after such amendment the memorandum shall be signed and dated by an officer authorised In this behalf by the Tribunal".

The letter of the Registrar dated the 25th May did not pur port to reject the application in substance we think it allowed the Assessee to return it after amendment. It is true that this letter Stated that it should be returned within the period of limitation, but we see no reason why under this rule the Appellate Tribunal should not be competent to extend the time which, according to the rule, is left to its discretion. It is obvious, in our opinion. that the purport of the rule is to allow time beyond the period of 60 days mentioned in section 66 ; for otherwise there would be no object in inserting such a provision, since the Assessee has they statutory right under section 66 to make an application within the 60 days.

The second point raised by Mr. Aziz for the Income‑tax Commissioner is that the rule is ultra vires of section 66, in so far as it purports to confer power on the Tribunal to allow an applica tion for reference to be filed after the expiry of 60 days. We think, however, that reading sections 59 and 66 together, a rule allowing the Tribunal to return an application made originally within time, but not on the prescribed form, for amendment so as to comply with the prescribed form and representation after the expiry of 60 days is not contrary to the intention of the Legislature. We think that the provision was introduced for the convenience of the Tribunal: certainly the forms prescribed (attached to the affidavit dated 19‑4‑58) show that they are design ed to assist the Tribunal in seeing that relevant particulars, facts, and questions of law are set out. This being the case, we do not think that the Legislature intended that the rule‑making authority should be prohibited from authorizing the Tribunal to allow amendment of an application presented within the 60 days and its representation within a period fixed by it, but ending after the 60 days.

The preliminary objection regarding limitation is thus over ruled.

A. H. Objection overruled.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.