TMI Blog1947 (12) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal that the appeal is allowed could be sustained. At the outset, learned counsel on behalf of the respondent assessee, raised a preliminary objection that this reference is incompetent and should not have been made by the Tribunal since the application by the Commissioner for a case to be stated, pursuant to Section 66(1) of the Act, was made after the expiration of sixty days following the passing of the order by the Tribunal. In considering this objection reference is necessary to some material facts. Prior to 1938, the assessee was the karta of a Hindu undivided family. In that year there was a disruption and partition. Subsequent to that event, the Income-tax Officer, acting pursuant to the provisions of Section 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was made to the Tribunal by the Income-tax Officer to correct a statement contained in the statement of facts in the order; the mistake being, that the assessment had been made upon a firm, whereas, in fact, it had been made upon the karta of the late joint family. That application was pursuant to Section 35(1) and (2) of the Act. Sub- section (1) enables the Commissioner or the Appellate Assistant Commissioner to rectify any mistake, apparent from the record, in an order passed by him. Such rectification can be made within four years from the date of the order. Sub-section (2) makes the provisions of sub-section (1) applicable to rectification of mistakes by the Appellate Tribunal. The application for rectification received disposal by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application received disposal on the same day as the application for rectification, namely, January 17, 1945, when the application under Section 66(1) was withdrawn by the Commissioner and was dismissed. The application to the Tribunal for a case to be stated, in respect of which this reference has been made, was preferred on March 29, 1945. Whilst the application, which was preferred on October 7, 1944, for a case to be stated, was made within the time prescribed by the sub-section, the other application preferred on March 29, 1945, was made after the limitation time of 60 days, provided in Section 66(1) of the Act, had expired after notice of the order of July 11, 1944, served upon the Commissioner. But it was in time, if the order on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, arising out of its order, to the Court. Rectification pursuant to Section 35 can be made within four years from the date of the order. If the Commissioner's contention be correct, then if, after the expiration of the sixty days prescribed in Section 66(1), some rectification is made to an order, even three or four years later, the right given under Section 66(1), which has been lost by the expiration of the period prescribed, is revised and either the Commissioner or the assessee, as the case may be, years after the order has been made by the Tribunal, can make an application for a case to be referred to the High Court. That clearly was never the intention of the Legislature. In the present instance, the Commissioner realised the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f July 11, 1944, upon the parties and expired 60 days thereafter. The granting of the application for rectification and correcting the error in the order of January 17, 1945, was not an order within Section 33(4) of the Act nor one in respect of which Section 66(1) enables a case to be stated. It follows that the application made on March 29, 1945, for the present case to be stated, was out of time and the Tribunal should not have referred this case, with the question in it, to this Court. Mr. Rama Rao Saheb, on behalf of the Commissioner, contended that, when a case has been stated by the Tribunal to this Court, containing a question, this Court has no province other than to express its opinion and to give its answer to the question; it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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