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1962 (2) TMI 125

..... his is an application under section 66(3) of the Indian Income Tax Act to be referred to as the "Act" hereinafter. 2. Two questions of law were formulated before us at the time of the hearing. It is the contention of the petitioner that in the circumstances of this case, the application "made" by the petitioner under section 66(1) of the Act must be considered as having been "made" within 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. .....

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..... language of section 30(2) wherein it is stated : "The appeal shall ordinarily be presented within thirty days....." 6. He wants us to hold that "making an application" merely means "bring about an application". He contends that the task of a petitioner under section 66(1) is complete, the moment he posts his petition. It is true the word "made" is a word of ambiguous import. If 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 fro .....

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..... Rule 7(2) says : "A memorandum of appeal sent by post under sub-rule (1) shall be deemed to have been presented to the Registrar or to the officer authorised by the Registrar, on the day of which it is received in the office of the Tribunal at Bombay or, as the case may be, in the office of such officer." 11. Rule 8 says : "The Registrar or, as the case may be, the authorised officer shall endorse on every 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 .....

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..... any delay therein and thereafter be completely beyond his control. Consequently, the time occupied in transmission of the requirement by application should not be computed as a part of the period of limitation of 60 days. The Act does not prescribe any mode of computation. In the absence of such provision, computation must be made in a manner consonant with the advancement of justice" (As summarised in the head-note). 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 .....

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..... at the decision rendered by the Tribunal is not correct. Unless and until it comes to that conclusion, this court will have no jurisdiction to direct the Tribunal to entertain the application. Our attention has been invited to any provision which empowers this court to condone the delay in making an application under section 66(1). Condonation of delay is not an inherent power vested in courts. It is power that has to 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, the .....

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..... court has no power to condone the delay and direct the Tribunal to treat the application as being within time. The expression used in section 66(3) that power is given to the High Court to require the Appellate Tribunal to treat the application as made within time allowed under sub-section (1) seems to suggest that the High Court has the power to call upon the Tribunal to admit an application which prima facie is barred 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 .....

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