The Income-tax Appellate Tribunal is not a court within the meaning of the Limitation Act, 1963, and therefore section 5 of the Act is not applicable to an application for reference made to the ITAT under section 66(1) of the Income-tax Act, 1922.

JUDGMENT :

P.N. Bhagwati, J.

The question arising in this petition is a question of considerable importance relating to the applicability of section 5 of the Limitation Act, 1963, to an application for reference made to the Income-tax Appellate Tribunal under section 66, sub-section (1), of the Indian Income-tax Act, 1922. The question lies in a narrow compass but in order to appreciate it, it is necessary to notice briefly the facts giving rise to the petition.

2. In the course of the assessment to income-tax for the assessment year 1961-62, the assessee, who is the respondent after us, claimed that a sum of Rs. 1,05,900 was liable to be deducted in computing the total income of the assessee but this claim was disallowed by the Income-tax Officer and the sum of Rs. 1,05,900 was included in the total income of the assessee. The assessee preferred an appeal to the Appellate Assistant Commissioner but the appeal was unsuccessful. This was followed by a further appeal to the Income-tax Appellate Tribunal and in this appeal the assessee succeeded in getting the relief claimed by it. The Commissioner of Income-tax, who is the petitioner after us, thereupon prepared an application to be presented to the Income-tax Appellate Tribunal for referring certain questions of law arising out of the order of the Income-tax Appellate Tribunal and this application for reference was despatched by him by registered post to the office of the Income-tax Appellate Tribunal at Bombay on 9th August, 1968. It was common ground between the parties that the return of income for the assessment year 1961-62, having been filed by the assessee after the commencement of the Income-tax Act, 1961 (hereinafter referred to as "the new Act"), the proceedings for assessment were governed by the Indian Income-tax Act, 1922 (hereinafter referred to as "the old Act"), and the application for reference made by the Commissioner was, therefore, governed by section 66, sub-section (1), of the old Act, and was required to be made within a period of sixty days from the date of service of the order of the Income-tax Appellate Tribunal on the Commissioner. The order of the Income-tax Appellate Tribunal was served on the Commissioner on 15th June, 1968, and the time for making the application for reference was, therefore, due to expire on 14th August, 1968. Now, ordinarily, the application for reference despatched from Ahmedabad on 9th August, 1968, should have reached the office of the Income-tax Appellate Tribunal at Bombay within a couple of days and that would have been in time but due to heavy floods in the rivers of South Gujarat, the railway communication between Ahmedabad and Bombay was seriously disrupted and the application for reference did not, therefore, reach the office of the Income-tax Appellate Tribunal at Bombay, until 17th August, 1968, when the period of limitation had already expired on 14th August, 1968. The Commissioner, therefore, made an application to the Income-tax Appellate Tribunal for condoning delay in filing the application for reference on the ground that he was prevented by sufficient cause from presenting the reference application within the prescribed time. The Income-tax Appellate Tribunal found that there was sufficient cause which prevented the Commissioner from filing the application for reference in time, but there was no provision in the old Act for condonation of delay in filing an application for reference, nor was section 5 of the Indian Limitation Act, 1908, available and the Income-tax Appellate Tribunal had, therefore, no jurisdiction or power to condone the delay in filing the reference-application. The Income-tax Appellate Tribunal, accordingly, by an order dated 17th April, 1969, rejected the reference application as time-barred. The Commissioner thereupon preferred the present petition challenging the validity of the view taken by the Income-tax Appellate Tribunal.

3. The principal relief claimed in prayer (A) of the petition was