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1962 (2) TMI 125

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..... the period of limitation. Alternatively it is urged that even if the application had been "made" within time, this court has power under section 66(3) to direct the Tribunal to treat the application as having been "made" within the time fixed. 3. The material facts are as follows : The petitioner filed I.T.A. No. 7971 of 1956-57 before the Income Tax Appellate Tribunal (Hyderabad Bench); that appeal was dismissed on August 7, 1958; the order of the Appellate Tribunal was served on the petitioner on August 16, 1958; the last date for filing the reference application was October 15, 1958; the petitioner posted his application on October 14, 1958; the same was received by the Tribunal on October 17, 1958; the Tribunal reje .....

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..... that word had stood by itself, then there would have been something to be said in favour of the contention advanced by Sir Vijayarangam. In our view the legislature has been using the expression "made the application" as equivalent to "present the application". For this view of ours, support is available from the language of section 33 of the Act. Section 33(2) says : "The Commissioner may, if he objects to any order passed by an Appellate Assistant Commissioner under section 31, direct the Income Tax Officer to appeal to the Appellate Tribunal against such order, and such appeal may be made within sixty days of the date on which the order is communicated to the Commissioner by the Appellate Assistant Commissioner&q .....

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..... ery memorandum of appeal the date on which it is presented, or deemed to have been presented under rule 7 and shall sign the endorsement." 12. If we take rule 8 and sub-rule (2) of the rule 7 together, it is clear that an application under section 66(1) is deemed to have been "made" only when that application is received in the office of the Tribunal. 13. From the foregoing analysis, it is clear that the application made by the petitioner barred by time. The petitioner's case is undoubtedly a hard one, but that is no justification for laying down bad law. 14. Having considered the provisions of the Act and the Rules framed, we may now proceed to consider the decided cases bearing on the point in controversy. The petitione .....

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..... ote). 15. The conclusion reached by the court is not supported by the language of either section 66(1) or by rules 7 and 8. This decision was considered and overruled by a full bench of the Orissa High court in Govinda Chowdhury v. Commissioner of Income Tax. In that case their Lordships considered the decisions of the various High Courts and came to the conclusion that in view of the clear and mandatory provision of rules 7(2) of the Appellate Tribunal Rules, there was no room for any liberal construction and the applications presented in that case were out of time and were rightly rejected by the Tribunal. The view of the Orissa High Court in this regard has been shared by various other High Courts. In this connection, we may usefully ref .....

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..... be granted. We have earlier come to the conclusion that the Tribunal was right in holding that the application made is barred by limitation. Therefore, we cannot hold that the Tribunal's decision is not correct. If we not in a position to hold that the Tribunal's decision is not correct, that undoubtedly we cannot, then, it is not within our powers to direct the Tribunal to re-entertain the petitioner's application. Emphasis was laid on the words "treat the application as made within the time". From these words, it is contended that even if the application had not been filed within time, this court has power to direct the Tribunal to treat is as having been "made" within time. This contention ignores another .....

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..... ed by limitation. But it is impossible to give that construction to that expression when no power is given to the Tribunal itself to condone delay making an application made under section 66(1). If the Tribunal had been given a power to that nature, and if the Tribunal had come to the conclusion that the assessee had failed to show sufficient cause for excusing any delay, then it would be open to the High Court to go in to that question and take a different view from the one taken by the Tribunal, but when such a power is not given to the Tribunal at all. it is difficult to understand how the High Court can even consider the application and direct the Tribunal to treat the application as made within the time allowed" (As summarised in .....

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