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1968 Supreme(P&H) 88
PUNJAB & HARYANA HIGH COURT
R.S.Narula and S.S.Sandhawalia JJ.
S.P.Jaiswal
Versus
Commissioner Of Income-tax
Income Tax Case No. 4 of 1964,
Decided On : JULY 10, 1968
The Income-tax Appellate Tribunal has no jurisdiction under any provision of law to extend the period of limitation prescribed for the making of an application under Section 66(1) of the Income-tax Act, 1922.
Headnote:
INCOME TAX - Reference to High Court - Application for - Limitation - Extension of time - Power of Tribunal - Income-tax Act, 1922 (11 of 1922), Sec. 66(1) - Income-tax Act, 1961 (43 of 1961), Sec. 256(1) - Limitation Act, 1908 (9 of 1908), Sec. 5 - Constitution of India, Art. 227 - Income-tax (Removal of Difficulties) Order, 1962, Cl. 4.
Fact of the Case:
The assessee filed an application under Section 66(1) of the Income-tax Act, 1922, for referring two questions of law to the High Court. The application was filed 21 days beyond the time prescribed. The assessee invoked Section 5 of the Indian Limitation Act, 1908, for condonation of the delay. The Tribunal held that Section 5 of the Limitation Act did not apply to an application under Section 66(1) of the 1922 Act and dismissed the application as barred by limitation.
Finding of the Court:
1. The assessee cannot invoke Section 66(3) of the 1922 Act as the decision of the Tribunal that the application for reference was barred by time is unassailable. 2. Sub-section (2) of Section 66 of the 1922 Act or Section 256(2) of the 1961 Act cannot be invoked as the Tribunal has not refused to state a case on the ground that no question of law arose therein. 3. The jurisdiction of the High Court under Article 227 of the Constitution can be invoked if any Tribunal within the territorial jurisdiction of the High Court passes an order which is wholly without jurisdiction or refuses to exercise jurisdiction vested in it on the ground that it has no jurisdiction. 4. Section 5 of the Limitation Act, 1908, cannot be invoked by the assessee as the provision had not been extended or made applicable to proceedings under Section 66(1). 5. The application for reference lay under the 1922 Act and not the 1961 Act as the return of income in question had been filed by the assessee long before the date of commencement of the 1961 Act. 6. The expression "proceedings for the assessment" contained in Clause (a) of Sub-section (2) of Section 297 of the 1961 Act includes proceedings under Section 256(1) of the 1961 Act. 7. Clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, is not void as being outside the scope of Section 298 of the 1961 Act.
Issues: 1. Whether the assessee can invoke Section 66(3) of the Income-tax Act, 1922, to challenge the Tribunal's decision that the application for reference was barred by time? 2. Whether Sub-section (2) of Section 66 of the 1922 Act or Section 256(2) of the 1961 Act can be invoked in the present case? 3. Whether the jurisdiction of the High Court under Article 227 of the Constitution can be invoked in the present case? 4. Whether Section 5 of the Limitation Act, 1908, can be invoked by the assessee to condone the delay in filing the application for reference? 5. Whether the application for reference lay under the 1922 Act or the 1961 Act? 6. Whether the expression "proceedings for the assessment" contained in Clause (a) of Sub-section (2) of Section 297 of the 1961 Act includes proceedings under Section 256(1) of the 1961 Act? 7. Whether Clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, is void as being outside the scope of Section 298 of the 1961 Act?
Ratio Decidendi: 1. Section 66(3) of the Income-tax Act, 1922, cannot be invoked by the assessee as the decision of the Tribunal that the application for reference was barred by time is unassailable. 2. Sub-section (2) of Section 66 of the 1922 Act or Section 256(2) of the 1961 Act cannot be invoked as the Tribunal has not refused to state a case on the ground that no question of law arose therein. 3. The jurisdiction of the High Court under Article 227 of the Constitution can be invoked if any Tribunal within the territorial jurisdiction of the High Court passes an order which is wholly without jurisdiction or refuses to exercise jurisdiction vested in it on the ground that it has no jurisdiction. 4. Section 5 of the Limitation Act, 1908, cannot be invoked by the assessee as the provision had not been extended or made applicable to proceedings under Section 66(1). 5. The application for reference lay under the 1922 Act and not the 1961 Act as the return of income in question had been filed by the assessee long before the date of commencement of the 1961 Act. 6. The expression "proceedings for the assessment" contained in Clause (a) of Sub-section (2) of Section 297 of the 1961 Act includes proceedings under Section 256(1) of the 1961 Act. 7. Clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, is not void as being outside the scope of Section 298 of the 1961 Act.
Final Decision: The application for reference is dismissed.
1. This application has been filed by Shri S. P. Jaiswal (hereinafter referred to as the assessee) under Section 66(3) of the Income-tax Act, 1922 (hereinafter called the 1922 Act), read with Section 256 of the Income-tax Act, 1961 (hereinafter referred to as the 1961 Act), and under Article 227 of the Constitution. The only facts which are necessary to be noticed for deciding this application are that after the assessees appeal to the Income-tax Appellate Tribunal for the computation of income-tax for the assessment year 1946-47 had been disposed of by the order of the Tribunal, dated February 15, 1963, an application under Section 66(1) of the 1922 Act (copy Annexure "A" to this application) was filed by the assessee for referring two questions of law to this court. It is not disputed that the said application was filed 21 days beyond the time prescribed for moving the Tribunal for making such a reference. At the hearing of the application it was conceded on behalf of the assessee, and indeed it is not denied even now, that the application was barred by time. The assessee, however, invoked Section 5 of the Indian Limitation Act, 1908 , for condonation of the delay on certain grounds with the merits of which we are not concerned in these proceedings. The Tribunal by its order, dated September 16, 1963 (Annexure " B "), held that Section 5 of the Limitation Act did not in terms apply to an application under Section 66(1) of the 1922 Act and that inasmuch as the benefit of Section 5 of the Limitation Act had not been extended to an application under Section 66(1) of the 1922 Act, the benefit of that provision could not be invoked by the assessee. In the circumstances, the Tribunal held that the application for reference was barred by limitation and the Tribunal proceeded to dismiss it on that short ground " without considering it on merits ".
2. In the present application a prayer has been made to direct the Income-tax Appellate Tribunal, New Delhi, to treat the assessees application for reference as having been filed within time and to direct the Tribunal to make the reference in question. The application has been opposed on behalf of the Commissioner of Income-tax.
3. The first question which calls for decision is as to the provision of law under which the present application can be entertained by this court. It was fairly and frankly conceded by Mr. Hira Lal Sibal, the learned counsel for the assessee, that Sub-section (3) of Section 66 of the 1922 Act cannot be invoked by his client as the decision of the Tribunal to the effect that the application for reference was barred by time, is indeed unassailable and it is an admitted fact that the application was in fact barred by time. Subsection (3) of Section 66 does not authorise the assessee or the Commissioner of Income-tax to move this court on any ground other than the one mentioned in that provision, i.e., on the ground that the decision of the Income-tax Appellate Tribunal about the petition being barred by time is not correct on merits. The only relief which this court can grant under that provision is to direct the Tribunal to treat the application under Sub-section (1) of Section 66 as having been made within time. That relief, it is conceded, cannot possibly be claimed or granted in the instant case.
4. Counsel then submitted that this application lies under Sub-section (2) of Section 66 of the 1922 Act corresponding to Section 256(2) of the 1961 Act. We are not inclined to agree with this submission. In both the provisions referred to above, this court can be moved only if :
(a) the Tribunal had been moved by the applicant under Sub-section (1) of Section 66 of the 1922 Act or Sub-section (1) of Section 256 of the 1961 Act, as the case may be; and
(b) if, on the said application, the Tribunal refuses to state the case on the ground that no question of law arose therein.
5. The assessee had no doubt moved the Tribunal under Sub-section (1) of Section 6
