The period of limitation for filing an application under section 66 (1) of the Income-tax Act, 1922, is 60 days from the date of service of notice of the order under section 33 (4) of the Act, and the time taken in transmission of the application by post cannot be excluded from the period of limitation.

Hidayatulla, J—This is an application under section 66 (3) of the Income-tax Act, 1922. The applicant had previously made an application to the Income-tax Appellate Tribunal, Bombay, requiring the Appellate Tribunal to refer to the High Court certain questions of law. The Appellate Tribunal (A Bench) dismissed the application as in its opinion the application was barred by time. The present application is made to request the High Court to send the case back to the Appellate Tribunal requiring it to treat the application as one made within the time allowed by sub-section (1) of section 66.

2. The appeal of the applicant was decided on the 28th June 1949, and notice of the order of the Appellate Tribunal under section 33 (4) of the Act was served on the applicant on the 23rd July 1949. Admittedly, the applicant had time till the 21st September 1949 within which to apply to the Appellate Tribunal under section 66 (1) of the Act.

3. The applicant posted his application on the 20th September 1949 at Darwha, and it reached the Registrar, Appellate Tribunal, on the 24th September 1949, i.e., on the sixty-third day. The application was heard on the 18th November 1949 and was dismissed as barred by time.

4. The Appellate Tribunal held that the Act gave no authority to the Tribunal to condone delays in the filing of applications under section 66 (1) of the Act.

5. That the statement of the law by the learned Members of the Tribunal is impeccable cannot be gainsaid. Section 5 of the Indian Limitation Act, though applied to applications to the High Court by sub-section (7A) of section 66 of the Act, has not been applied to applications under the first sub-section of that section. Nor is there any provision similar to the one to be found in section 30 (2) or section 33 (2A) of the Act. En the absence of any provision conferring this power on the Tribunal the Tribunal could not but hold that the application was barred by time. Authority for such an obvious proposition is not needed, but reference may be made to Bansilal v. Income-tax Commissioner, 1948 AIR(Bom) 431, Commissioner of Income-tax, Madras v. Ganga Raju, 1927 52 MadLJ 273, Income-tax Commissioner v. Sevugan, 1948 1 MadLJ 157; see also Ganesh Prasad v. Income-tax Commissioner,1942 AIR(All) 251 and Merchants Mokini Flour Mills, Co., Ltd. v. Commissioner of Income-tax, Punjab,1938 AIR(Lah) 876

6. This would have been the end of the case but for an argument based upon Popsing Rice Mill v. Income-tax Commissioner, Bihar, 1949 AIR(Ori) 53, in which on similar facts a contrary view was expressed by Ray C. J. and Panigrahi J. In that case too the application was sent by post and arrived at the Madras office of the Tribunal three days too late. The only difference between the present case and the Orissa case is that while in the Orissa case the application was posted on the 60th day the application in this case was posted on the 59th day. In neither case could the applicant hope that in the ordinary course of business the application would have reached in time. Naturally, the opinion of the Orissa High Court was pressed upon us for our acceptance. I have carefully considered the opinion of the learned Judges and find myself unable to agree with them.

7. According to the learned Judges section 66 (1) must be read with rules 7, 8, and 36 of the Appellate Tribunal Rules, 1946. By rule 36 rules 7 and 8 of the Rules have to be applied mutatis mutandis to applications under section 66 (1). The learned Judges notice two differences at the very start in the matter of appeals and applications. The first is that in the case of applications 'actual presentation is not in the picture', and whereas presentation of an appeal is the terminus ad quern of the limitation, the receipt of an application is merely the terminus a quo of the period of 90 days during which the Tribunal has to make a reference to the High Court. According to the learned Judges the date of the 'making of the application' and the