TMI Blog1968 (7) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ". In the present application a prayer has been made to direct the Income-tax Appellate Tribunal, New Delhi, to treat the assessee's applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal's appellate order. Whatever other remedies may be available to a party aggrieved by an order of a Tribunal refusing to make a reference on any ground other than the one to the effect that no question of law arises in the case, he has certainly no right to invoke sub-section (2) of section 66 of the 1922 Act or section 256(2) of the 1961 Act. Mr. Sibal lastly submitted that this application should be disposed of under article 227 of the Constitution as the Tribunal has refused to exercise jurisdiction vested in it by law. Even Mr. Awasthy could not say anything against this contention. The jurisdiction of this court under article 227 of the Constitution can certainly be invoked if any Tribunal within the territorial jurisdiction of this 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. Jurisdiction of this court under article 227 of the Constitution is for this purpose akin to the revisional powers of the High Court under section 115 of the Code of Civil Procedure. The main difference between the two jurisdictions is that whereas it is only the order of a court subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. " It is, therefore, obvious that if the only proper law under which an application for reference could be made by the assessee to the Tribunal at the relevant time was the 1961 Act, the Tribunal indeed had the jurisdiction to condone the delay if it could be satisfied that the assessee was prevented by sufficient cause from presenting the application within the period specified in sub-section (1) of section 256, inasmuch as the application was admittedly filed within a period not exceeding thirty days after the expiry of the prescribed period of limitation. On the other hand, it is equally clear that if the 1961 Act did not apply to the reference proceedings and the application in question had been rightly filed by the assessee under the 1922 Act, no exception whatever can be taken to the impugned order passed by the Tribunal. The main issue which emerges for decision in these circumstances in this case is whether the application for reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r revision, shall be continued and disposed of as if this Act had not been passed ;........ (g) any proceeding for the imposition of a penalty in respect of any assessment for the year ending on the 31st day of March, 1962, or any earlier year, which is completed on or after the 1st day of April, 1962, may be initiated and any such penalty may be imposed under this Act ;.... (in) where the period prescribed for any application, appeal, reference or revision under the repealed Act had expired on or before the commencement of this Act, nothing in this Act shall be construed as enabling any such application, appeal, reference or revision to be made under this Act by reason only of the fact that a longer period therefor is prescribed or provision is made for extension of time in suitable cases by the appropriate authority. " Clause (c) of section 297(2) applies only to the particular and specific proceedings which were pending on the commencement of the 1961 Act, i.e., on April 1, 1962. As already stated it was the assessee's appeal to the Tribunal which was pending on that day and the same had, therefore, necessarily to be disposed of under the old Act as if the new Act had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al members of certain companies on the income deemed to have been distributed as dividend, section 23B deals with assessment in case of departure from the taxable territories, section 24B deals with collection of tax out of the estate of deceased persons, section 25 deals with assessment in case of discontinued business, section 25A with assessment after partition of Hindu undivided families and sections 29, 31, 33 and 35 deal with the issue of demand notices and the filing of appeals and for reviewing assessment and section 34 deals with assessment of incomes which have escaped assessment. The expression 'assessment' used in these sections is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof. On the other hand, Mr. Awasthy has referred to the following passage in the Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as the repealed Act), shall be instituted and disposed of as if the repealing Act had not been passed. (2) Any such proceeding instituted under the repealing Act after the 31st day of March, 1962, and before the date of this Order shall be deemed to have been instituted under the repealed Act and shall be disposed of as if the repealing Act had not been passed : Provided that if any such proceeding has been disposed of before the date of this Order under any provision of the repealing Act, it shall be deemed to have been disposed of under the corresponding provision of the repealed Act and any appeal, reference or revision in respect of the proceeding so disposed of shall be instituted and disposed of as if the repealing Act had not been passed. " The import, scope and effect of section 298 and of clause 4 of the Central Government's Order issued thereunder came up for consideration before the Calcutta High Court as well as before their Lordships of the Supreme Court in Kalawati Devi Harlalka's case. Bose C.J., who wrote the judgment of the Division Bench of the Calcutta High Court, held in this connection as below : " But it is to be pointed out that the vires of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, in such general or special order, as is contemplated in sub-section (1), for adaptations and modifications subject to which the Act of 1922 shall apply in relation to the assessment for the assessment year ending on 31st March, 1962, or any earlier year. Therefore, the contention of the learned counsel for the appellant challenging the vires of clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, must be rejected. In view of these findings on the question of construction of clause (a) of sub-section (2) of section 297 of the Act and as to the vires of clause 4 of the Income-tax (Removal of Difficulties) Order, 1962, it is not necessary to express any definite opinion on the point whether section 6 of the General Clauses Act, 1897, is available for the purpose of interpreting the provisions of the Act of 1961. " Dismissing the appeal preferred by Kalawati Devi Harlalka against the above-said decision of the Calcutta High Court, Sikri J., who wrote the judgment of the Supreme Court, after referring to various decisions in which the word "assessment " had been used in the widest connotation, held : "It is quite clear from the authorities cited above that the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising " in giving effect to the provisions of the 1961 Act " and not for enlarging the scope of any of its provisions. Great emphasis has been laid by learned counsel on the restriction placed on the power of the Central Government under section 298 by the provision contained in the section itself to the effect that any general or special order passed by the Government must not be inconsistent with any provision of the Act. Mr. Sibal submits that the addition of the word " reference " in clause 4 of the Removal of Difficulties Order is hit by the above-said restriction inasmuch as " proceedings for the assessment " do not include an application for reference and, in so far as " reference " has been mentioned in clause 4 of the 1962 Order, it is inconsistent with clause (a) of sub-section (2) of section 297. We do not, however, find any force in this submission of Mr. Sibal in view of the widest possible connotation given by the Supreme Court to the expression " proceedings for assessment " occurring in clause (a) of sub-section (2) of section 297 and in view of the law laid down in Kalawati Devi Harlalka's case. it was then contended that if clause (a) can be construed in the manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference on the ground that it is barred by time. Such an application lies in a case where the Tribunal has refused to make a reference on the ground that no question of law arises from its appellate order ; (iii) The power of judicial superintendence conferred on a High Court by article 227 of the Constitution can be invoked for setting aside an order of a Tribunal holding it has no jurisdiction to decide a particular matter placed before it if it is found that in fact the Tribunal had the jurisdiction to adjudicate upon the matter and it erroneously refused to exercise statutory jurisdiction vested in it by law ; (iv) 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 1922 Act. If the application is made beyond the prescribed time, the Tribunal has no discretion but to dismiss the same unless a statutory provision to the contrary is made or the provisions of section 5 of the Limitation Act are made applicable to those proceedings ; (v) The Income-tax Appellate Tribunal has the jurisdiction to condone delay up to a maximum period of thirty ..... X X X X Extracts X X X X X X X X Extracts X X X X
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