P (PLP)

Fazal Din, for Petitioners. Abdul Hameed, for Crown. ABDUL AZIZ, C. J.‑Out of the two applications under section 66‑1, one on behalf of S. H. Mahmood & Co., Sadiqabad and the other on behalf of Maheshwari Cotton Co., the following six applications have arisen, which are before this Court for disposal, and which shall be disposed of by one single judgment. In these applications to the Income Tax Tribunal certain questions were formulated by the petitioners and which were requested to be referred to the High Court. Out of those questions, one alone, was referred and the others were disallowed. During .the pendency of those applications two supplementary applications were also made, one, in each main application by which certain further questions were raised to be referred to the High Court. The Tribunal dismissed the supplementary applications as barred by time, and as stated above only referred one question out of the several questions raised in each petition to the High Court. This order of the Tribunal consequently gave rise to the following three applications in each case and thus making them six in all :‑

(1) Reference, under section 66‑I which was forwarded to the High Court by the Tribunal for the disposal of one question. (2) Application by the assessee under section 66‑II with reference to the questions which the Tribunal refused to‑refer to the High Court. (3) Application under section 66‑III against the order of the Tribunal holding the supplementary application in each case barred by time. A preliminary question was raised by the learned counsel for the Income Tax Department that both the applications under section 66‑I made to the Tribunal were barred by time, and were liable to be dismissed and consequently the six applications now before the Court could not arise. I therefore heard the learned counsel on both sides on the question of limitation; as in my opinion it‑ is fatal to the six applications before me. In deciding the question of limitation each application under section 66‑I made to the Tribunal is to be disposed of separately. The application on behalf of S. H. Mahmood & Co., Sadiqa bad was filed on 3rd of November 1949. The order in appeal was passed by the Tribunal on 16th October 1949. The copy was received by Mr. Mahar counsel for the company through his brother Taj Mohammad on 25th of August 1949. The last date of limitation for preferring the petition under section 66‑I was 25th of October 1949. It was presented on 3rd of November 1949. The learned members of the Tribunal condoned the delay in preferring the application within the period of limitation on the ground that the copy received by the brother of Mahar Qadir Bakhsh was not received on 25th of August 1949 but some time later on. Now, it is clear from the‑application which was sent by Mahar Qadir Bakhsh to the Copying Department and which was read before me that he knew the decision of the Tribunal in appeal before 25th of August 1949. It is, therefore clear that the period of limitation could in no manner commence from the date the copy of an order in appeal was received by Mahar Qadir Bakhsh from his brother Taj Mohd. The circumstances therefore indicate that Mahar Qadir Bakhsh had no justification to keep silent and not to prefer the petition under section 66-I within the period of limitation. It passes my comprehension how the learned members of the Tribunal had condoned the gross and inexcusable negligence of Mahar Qadir Bakhsh and had laid a proposition to bring the petition under section 66‑I within the period of limitation which was repugnant to the firmly established principle of the law of limitation. The learned counsel for the Income Tax Department has referred me in support of his con tention to 158 I. C. 382 and 1934 I. T. R.

484. In both the rulings the same salutary principle is laid down i.e., the knowledge of the Mukhtar of the assessee of the order of the Tribunal is the knowledge of the assessee and the period of limitation is to be reckoned from such knowledge. In the present case it is undis putable that Mahar Qadir Bakhsh represented the assessee and had full knowledge of the order of the Tribunal and he was possessed of the material i.e., the copy of the order of the Tribunal and could therefore prefer the petition under section 66-I within the period of limitation. The learned counsel for the petitioner was unable to meet the fatal objection of the counsel of the Income Tax Department and his task was nothing but to beat about the bushes, firstly, by arguing that this question cannot be raised before this Court and secondly, by referring to the authorities which manifestly have no bearing on the point be fore me. It was astounding to hear from the counsel of the eminence of Ch. Fazal Din that a law question however wrongly decided by the Tribunal could not be considered by the High Court during the reference application. To accept this proposi tion would be to lay down a ruling contrary to all canons of justice. To explain the position further by a concrete example I would state that if a suit clearly barred by limitation is decided by the Court in favour of the plaintiff, it would be nothing but unjust to say that the defendant cannot question that decision in the Court of appeal. The law rather is that even if the consideration of a question of law is omitted by the inferior Court, the superior Court in appeal is competent to entertain and consider it suo moto. It was also contended by the learned counsel for the petitioner that as the respondent in such like proceedings is not competent to put in cross‑objection consequently he cannot raise this question before this Court. It is not a question of any cross‑ objection. It is a question which was raised by the respondent in the Tribunal and which was decided definitely erroneously and which decision the counsel is competent to attack in appeal. In my opinion therefore the petition of S. H. Mahmood & Co., Sadiqabad, under section 66‑I was beyond the period of limitation and merits rejection and consequently no reference could be made by the Tribunal on a single question of law arising therefrom under section 66‑1 nor the other two applications under section 66‑II and section 66‑III were entertain able. The other references which have been enumerated above and which have‑ arisen out of the petitions under section 66‑I of the Maheshwari Cotton Co., are equally untenable as that application too as I will presently show was barred by time. The application for reference was made on 22nd of December 1949 but was not accompanied by a requisite amount of Rs. 100 which was imperative to be deposited in Court along with it. This fee of Rs. 100 was deposited on 5th of January 1,

950. The law is unquestionably clear that the failure on the part of the assessee to deposit the requisite amount within the period of limitation was fatal to his petition under section 66‑1 of the Income Tax Act. If any authority is needed then reference may be made to 201 I. C. 800'. It was laid down by the Division Bench of Allahabad High Court in Ganesh Prasad v. Com 9nissioner of Income Tax that there is no provision authorising the Commissioner to have recourse to section 5, Limitation Act in connection with an application presented before him under section 66 (2) Income Tax Act. Section 66 (2) Income Tax Act contains no saving clause and gives neither the Commissioner nor the High Court any power to condone delay if the assessee does not present his application within the time prescribed. An application under section 65 (2) is not complete till it is accompanied by a fee of Rs.

100. The application therefore on behalf of Maheshwari Cotton Co, to the Income Tax Tribunal was not within the period of limi tation and merited dismissal and consequently no reference under section 66‑I could be made by the Tribunal. Both the references under section 66‑I are to be replied accordingly. The other applications which fire before the Court and have arisen out of those petitions could not arise. I should not hesitate to observe though I have already stated that the failure of the assessee is entirely due to the negligence of their counsel Mr. Qadir Bakhsh Mahar. There is no alternative for me but to dismiss the petitions under sections 66‑II and 66‑III which are dismissed accordingly. As they fail on a technical question of law I pass no order as to casts. K. M. A. Petitions dismissed.