S. 12(2), Limitation Act would apply in respect of an application to the Revenue Commissioner to state a case under S. 29(2), Orissa Agricultural Income-tax Act.

Judgement

NARASIMHAM, J. :- This is an application under Sub-S. (4) of S. 28, Orissa Agricultural Income-tax Act, 1947 against an order of the Revenue Commissioner, Orissa, rejecting an application under Sub-S. (2) of S. 29 of that Act on the ground that it was time-barred.

2. The material facts are as follows : The petitioner was assessed to agricultural income tax for the year 1947-48 on 28-2-1949. His appeal to the Collector of Agricultural Income-tax under S. 25 of that Act was disposed of on 7-9-1949 with some directions to the Agricultural Income-tax officer to modify the assessment order in the light of the instructions contained in the judgment.

The petitioner then filed a revision petition under S. 28 of the Act before the Revenue Commissioner which after a remand was finally disposed of on 9-2-1951 with an order to the effect that the appellate order of the Collector of Agricultural Income-tax was correct and that there was no ground for revision of his order. The Superintendent of the Revenue Commissioners office communicated the result of the Revenue Commissioners order to the petitioner by his letter dated 16-2-1951 which was received by the petitioner on 19-2-51. The contents of that letter are as follows :

"The R. C. has been pleased to pass orders on the above mentioned case on 9-2-51. The petition has been rejected."

The reasons given by the Revenue Commissioner for rejecting the revision petition were, however, not communicated to the petitioner. Then the petitioner applied for a copy of the order of the Revenue Commissioner on 21-2-1951 and received it on 8-3-1951. The application to the Revenue Commissioner under S.29(2) of the Act for stating a case was filed on 30-4-1951. If the time-taker, for obtaining a copy of the Revenue Commissioners order under S. 28 be excluded, that application would be within the time-limit of sixty days prescribed in S. 29(2). If, however, that period is not excluded the application is clearly time-barred.

The Revenue Commissioner took the view that the application was time-barred and that he had no jurisdiction to condone the delay and the main question for consideration now is whether the view taken by the Revenue Commissioner on the question of limitation is correct.

3. Sub-Section (2) of S. 29, Limitation Act says clearly that

"for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions of Ss. 4, 9 to 18 and 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law".

There is no provision in the Orissa Agricultural Income-tax Act expressly excluding those sections of the Limitation Act. Consequently, by virtue of S. 29(2) Limitation Act, S. 12 of that Act must be held to apply to the provisions of the Orissa Agricultural Income-tax Act. Sub-Section (2) of S. 12, Limitation Act says that in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for review of judgment, the time requisite for obtaining a copy of the order of the lower Court should be excluded.

Mr. Mohapatra, on behalf of the Income-tax authorities, urged two grounds against the application of S. 12(2), Limitation Act to the present case. Firstly, he urged that by virtue of S. 44, Orissa Agricultural Income-tax Act, it must be held that the provisions of S. 12, Limitation Act were expressly excluded. Secondly, even if it be held that S. 12(2) applies that sub-section is expressly limited to (i) appeal, (ii) application for review of judgment, and (iii) application for leave to appeal and cannot be extended to an application to the Revenue Commissioner to state a case for the decision of the High Court. In my opinion, neither of these two contentions can be accepted. Section 44 Orissa Agricultural Income-tax Act runs thus :

"In computing the period of limitation prescribed for any appeal under this Act, the day on