Judgment

SIKRI, J. : This is an appeal on a certificate grated by the High Court of Bombay against its judgment dated February 24, 1961, dismissing the petition filed by the appellant under Art. 226 of the Constitution of India. This appeal raises a short question us to the construction of S. 49-E of the Indian Income-tax Act, 1922, hereinafter referred to as the Act. Before we deal with this question, it is necessary to set out the relevant facts.

2. The appellant, at the material time, carried on business not only in Indian but also outside India, i.e., Ceylon, the former States of Kolhapur and Kapurthala and other places. It is not necessary to give the facts relating to the income in Ceylon and Kolhapur because if the facts relating to the income made in Kapurthala are stated, these will bring out the real controversy between the appellant and the Revenue. We may mention that it is common ground that the facts relating to Ceylon income and Kolhapur income are substantially similar.

3. On July 9, 1954, the appellant wrote a letter to the Income-tax Officer, Companies Circle, Bombay stating that for the assessment year 1949-50, it was entitled to refund on the income taxed in Kapurthala State. It attached an original certificate for tax showing payment of Rs. 37,828-11-0, and requested that a refund order be passed at an early date. On June 27, 1956, the Income-tax Officer rejected the claim on the ground that the claim filed by the appellant was not within the time limit of four years laid down in R. 5 of Income-tax (Double Taxation Relief) (Indian States) Rules, 1939 - hereinafter called the Indian States Rules. On December 18, 1956, the appellant filed a revision, under S. 33A of the Act, against the said order, before the Commissioner of Income-tax, Bombay. The appellant stated in the petition that

"unfortunately the Company s assessment for the year in question was completed by the Income-tax Officer on the last day of the financial year 1953-54, i.e., 31-3-1954 being the last date on which their claim for double income-tax relief should have been lodged. In absence of the assessment order being received by the Company it was not physically practicable for the assessee to lodge its claim for double income-tax relief and as such the time prescribed under 3.50 had already expired when the assessment order was received by the company."

The Commissioner made some enquiries. The appellant, in its letter dated June 30, 1958, replied that no provisional claim for double income-tax relief was made by the appellant within the time prescribed. The appellant reiterated its own plea that it was not "physically practicable" for the assessee to lodge its claim of double-tax relief within the time prescribed. The Commissioner, however, rejected the petition. He observed that

"The assessment in the Kapurthala State was made on 20-3-1950, i.e., much before the assessment was completed by the Bombay Income-tax Officer. Nothing prevented the petitioner, therefore, from filing a provisional claim before the period of limitation was over. At least, it should have made such a claim before the Income-tax Officer at the time of assessment. I regret I cannot condone the delay in filing the claim as there is no provision under S. 50 for such condonation."

The appellant then approached the Central Board of Revenue. The Central Board of Revenue, by its letter dated December 31, 1958, declined to interfere in the matter. The appellant did not take any steps to apply to the High Court under Art. 226 for quashing the above orders of the Commissioner of Income-tax or the Central Board of Revenue.

4. On August 28, 1959, the Income-tax Officer issued three notices of demand under S. 29 of the Act in respect of the Assessment years 1949-50, 1950-51 and 1951-52. The appellant then wrote a letter dated September 4, 1959, requesting the Income-tax Officer to set off the refunds to which the appellant was entitled pursuant to the provisions of Income-tax (Double Tax