An application under S. 66(1) of the Income-tax Act is not complete till it is accompanied by a fee of Rs. 100/- and where the fee is received after the expiration of the limitation, the Appellate Tribunal has no power to excuse the delay.

Judgement

BARMAN, J. :- This is an assessees application under S. 66(3) of the Income-tax Act arising out of R. A. No. 377 of 1955-56, challenging the correctness of the Appellate Tribunals decision dated 21-12-1955 rejecting his application under S. 66(1) as having been out of time. The facts shortly stated are these : The assessee petitioner filed an appeal before the Appellate Tribunal hearing I. T. A. No. 2920 of 1954-55 for the assessment year 1953-54 which was partly dismissed on 23-5-1955. On June 2, 1955 the said order of dismissal was received by the petitioner. On 29-7-1955 the petitioner sent a reference application under S. 66(1) of the Act by post, addressed to the Appellate Tribunal, Calcutta Branch, which was received by it on 1-8-1955, that is, the date on which the prescribed sixty days period of limitation expired. July 31, 1955 being a Sunday was a holiday.

The following day on August 1, 1955 the petitioner sent by telegraphic money order the required fee of Rs. 100/- which was to accompany the application under S. 66(1) of the Act. The money order was received in Calcutta on August 2, 1955 which was out of time. On these facts the Appellate Tribunal rejected the application as barred by limitation.

2. The only question for our decision is whether the application, - which was sent without the required fee of Rs. 100/- which was subsequently sent by the petitioner by telegraphic money-order but reached out of time, - can be treated as an application made within time as required under S. 66(1) of the Act.

3. Mr. B. K. Mohanty, learned counsel for the petitioner, by reference to S. 66(1) read with Rules 7 and 35 contended that there is nothing to show that the required fee of Rs. 100/- is to accompany the application itself. Rule 35 requires that an application for reference under sub-section (1) of S. 66 shall be in triplicate and shall be accompanied by a list of documents which in the opinion of the applicant should form part of the case and a translation in English of any such document, where necessary. The rule is silent as to whether the required fee of Rs. 100/- is to accompany the application itself as provided in S. 66(1) of the Act.

Then again the learned counsel contended that sub-rule (2) of Rule 7 does not say that the required fee of Rs. 100/- is to accompany the application which is sent by post. All that sub-rule (2) states is that the application sent by post, shall be deemed to have been presented to the Registrar on the day on which it is received in the Office of the Tribunal; that there also the sub-rule (2) of Rule 7 is silent as to the required fee. Our attention was also drawn to the Form of S. 66(1). Reference application being Form R(T) where on the body of the Form there is no mention about the required fee of Rs. 100/-having to accompany the application; paragraph 6 of the Form states that the documents or copies thereof, as specified below (the translation in English of the documents, where necessary is annexed) be forwarded to the High Court with the statement of the case.

But there is nothing about the required fee having to accompany the application in the said paragraph. But it is to be noticed that there is a Note at the bottom of the Form which states that the application when made by an assessee must be accompanied by a fee of Rs. 100/- : it is suggested that the fee should be credited in the Treasury or a branch of the Imperial Bank of India or a branch of the Reserve Bank of India after obtaining a chalan from the Income-tax Officer or the Excess Profits Tax Officer and the triplicate chalan sent to the Tribunal with the application; the Appellate Tribunal will not accept cheques, drafts, hundies or other negotiable instruments. This Note is clearly indicative that the Legislature intended the provision in S. 66(1) to be mandatory with regard to the required fee of Rs. 100/- having to accompany the application, in order that the application under S. 66(1) may be complete. Of cour