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TMI Blog1972 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax. His appeal was partly allowed and a sum of Rs. 4,800 was deleted from the income as proper expense on entertainment. Against this appellate order there were two appeals before the Tribunal. The assessee's appeal was No. 5587 of 1966-67. The Income-tax Officer also appealed against this deletion of Rs. 4,800 and his appeal was No. 5594 of 1966-67. The Tribunal consolidated both these appeals, heard them together and disposed them of by one order dated 2nd August, 1968. By this order the Tribunal upheld the original assessment order, allowed the appeal of the Income-tax Officer and dismissed the petitioner's appeal. The result of this order was that the original assessment order was maintained and the alteration made by the Appellate Assistant Commissioner was set aside. This order of the Tribunal was communicated to the assessee on 2nd September, 1968. The assessee on 28th October, 1968, sent an application containing all the relevant annexures asking for a reference to the High Court of questions which covered both the appeals, i.e., of the assessee as well as of the Income-tax Officer. The same day it also despatched a money order of Rs. 100, the necessary fee which is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax Act, 1922, provided that the money should be accompanied with the papers and if, therefore, the money, even if it did not accompany the papers, had reached the office within limitation, it was possible to take the view that there was substantial compliance. But, in case the money was not received by the Tribunal within limitation, it cannot possibly be said that there was compliance with the provisions of the section and, consequently, the order of the Tribunal was correct. The relevant part of section 66(1) of the Income-tax Act, 1922, is as follows: "Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of section 33 the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the Appellate Tribunal..." In this part of the section there are two phrases which are particularly to be noted on which we will have to make our observations in the course of our order. The first phrase is "served with notice of an order under sub-section (4)". The scope of this phrase will be considered in due course. The next phrase is "acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other methods not specified either way. These provisions make it clear that the method by which the money has to reach the Tribunal is flexible and that any reasonable process can be utilized for sending the money to the Tribunal. It is expressly provided under the rules that the application and the papers themselves can be sent by registered post. Where the assessee resides outside the station, he sends the papers by registered post. Obviously, the cash cannot accompany the application and he has to send it either through post office or through some bank. If under the note to the form a payment to the bank and the receipt thereof is considered as sufficient payment within time, we see no reason why the assessee, who has made a payment to the post office and has attached the receipt of such payment with the papers, should not be treated as having substantially complied with the requirements of the Act. Exactly on this point there is a divergence of opinion among the High Courts. In PL. SP. NK. Nagappa Chettiar v. Commissioner of Income-tax, a Division Bench of the Madras High Court came to the conclusion that the despatch of a money order was a sufficient compliance with provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order out of which two appeals arise and as a result of the disposal of both the appeals one order is passed amending the assessment order or refusing to amend the order, there is only one order against which it is necessary to file only one application under section 66 of the Act. Sub-section (4) of section 33 enjoins the Appellate Tribunal, after hearing both the parties to the appeal, to "pass such orders thereon as it thinks fit". This order, to our mind, must be the order which affects the original assessment. The order here does not mean only the reasoning in support of the order. It is the operative order that matters and which affects the assessment. Whether this order is as a result of two cross-appeals or is as a result of one appeal only is immaterial. The contention on behalf of the department is that this order refers to an order "thereon" and that this means an order upon each of the appeals which is heard. To our mind, that does not make any difference, for singular includes plural. If two appeals are heard against an assessment, then the orders would mean orders upon both those appeals affecting the same assessment. Similarly, reference was made on behalf of the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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