P L D 1966 Dacca 226 (PLP)

Razzaq Rahman for Respondents (in Petition No. 36 of 1965). Dates of hearing : 29th and 30th June 1965. SATTAR, J.‑The point raised in these two petitions which though arising out of different sets of fact is the same and hence they have been heard together and are disposed of by one judgment. The short question that falls for decision relates to the interpretation of subsection (2) of section 33‑A of the Income‑tax Act., In each of these cases, the Commissioner of Income‑tax has rejected the application for revision filed by the petitioner on the ground that it was time‑barred as it was filed beyond one year "from the date of the order". It is contended that, as the petitions for revision were filed within one year from the dates the orders were served on the petitioners, they were in time. The fact that the revisional applications before the Commissioner were filed within one year from the dates the orders were served on the petitioners is not in dispute. We are therefore to see as to what is the exact meaning of the expression "the date of the order" occurring in subsection (2) of section 33‑A of the Income‑tax Act. Learned counsel for the petitioners contends that the real meaning of the above expression indicates that the date of the order is the date when the order becomes known to the person concerned. It has been argued that an order passed in absence of the assessee or with no notice of the date when it is to be passed is no order within the purview of the expression "the date of the order". That order really comes into existence when the assessee comes to know of it or when the assessee has constructive notice of the date when it is passed. This contention receives support from two decisions of Indian High Courts on which Mr. Asrarul Hossain has relied, namely, the case of O. A. O. A. M. Muthiah Chettiar v. Commissioner of Income‑tax, Madras (19 I T R 402) and the case of Petlad Bulakhidas Mills Co. Ltd. v. Raj Singh (37 I T R 264). In both these cases a view has been taken that, when a person is given a right to resort to a remedy to get rid of an adverse order within a certain time, limitation should not be computed from a date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have had knowledge of the order. In the latter case, it has also been observed that the Legislature, by section 33‑A (2), gave an effective right to the assessee and also an effective period of limitation. In order that the period provided for may be effective, the whole period of one year must be available to him and this can only happen if the period is calculated from the date of actual or constructive knowledge. The view taken in the above two cases can only be supported on the principle of casus omissus or on the ground that the expression "the date of the order" means the date when the order Comes to the knowledge of the assessee actually or constructively. The learned Judges of the Bombay High Court have clearly stated that their decision is not based on the principle of casus omissus. The Madras High Court does not appear to have relied upon the same. Mr. Asrarul Hossain has stated that he does not also want to rely on this. principle. We may in this connection point out that the principle of casus omissus was invoked in aid of the assessee in the case of Mahabir Prashad v. Commissioner of Income‑tax, Punjab (22 I T R 296) but was not accepted, and in our view rightly. In Craies on Statute Law (Fifth Edition, page 68), it has been observed as follows: "The authorities on this subject are numerous and unanimous. "No case can be found to authorise any Court to alter a word so as to produce a casus omissus." said Lord Halsbury in Nersey Docks v. Henderson (1888) 13 App. Cas. 595,

602. In Crawford v. Spooner (1846) 6 Moore P. C. 1, 8, 9, the Judicial Committee‑said : "We cannot aid the Legislature's defective phrasing . of an Act, we cannot add and mend, and, by construction, make up deficiencies which are left there." For the purpose of determining the real import of the words in question, it is necessary to refer to some of the other sections of the Income‑tax Act. Under section 33‑A(l) the power of revision cannot be exercised by the Commissioner if the order in question has been made more than one year previously. Section 35 provides that the Commissioner or the Assistant Commissioner may at any time within four years from the date of any order passed by him in appeal or in revision and the Income‑tax Officer may at any time within four years from the date of any assessment order or refund order passed by him, on his own motion, rectify any mistake apparent from the record of the appeal, revision or assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee. Section 66 provides that within sixty days of the date upon which he is served with notice of an order under subsection (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and the Appellate Tribunal shall, within ninety days of the receipt of such an application, draw up a statement of the case and refer it to the High Court. Section 67‑A states that in computing the period of limitation prescribed for an appeal under the Act or for an application under section 66 the day on which the order complained of was made and the time requisite for obtaining copy of such an order shall be excluded. The above provisions clearly point to the conclusion that the Legislature, whenever it wanted that limitation should run from the date of knowledge of an order, has expressly provided for the same. It appears from the above provisions that the periods of limitation in such cases are shorter. Wherever, however, provision has been made for moving against an order within sometime‑limit from the date when it ‑is passed, 2 longer period of limitation has been provided for. It is an accepted principle of interpretation that a statute is to be understood in accordance with the plain meaning of the language used in it. It has been observed : "If there is one rule of construction of statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used." In Halsbury's Laws of England (Third Edition Volume 36) on page 391, we find the following observations: "

585. Primary Meaning to be Followed.‑If there is nothing to modify, nothing to alter, nothing to qualify the language which a statute contains, the words and sentences must be construed in their ordinary and natural meaning.

586. Speculation as to Parliament's intention not permissible. If the result of the interpretation of a statute according to its primary meaning is not what the Legislature intended, it is for the Legislature to amend the statute construed rather than for the Courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is thought the Legislature must have intended." With due respect, we may point out that the learned Judges of the Madras and Bombay High Courts in construing the expression "the date of the order" in section 33‑A(2) have not given due weight to the above principles of interpretation. In Craies on page 86, the following occurs. "It 13 not, however, competent to a Judge to modify the language of an Act of Parliament in Order to bring it into accordance with his own view as to what is right or reasonable. Boni indicis est diccre, non jus dare. In Abel v: Lee (1871) L. R. 6 C. P. 365, the question was, what was the proper construction to be put upon section 3(4) of the Representation of the People Act, 1867, which enacts that any man is entitled to be registered as a voter who, on or before July 20, has paid "all poor rates that have become payable by him up to the preceding fifth day, of January." It appeared that the person in question had paid all the rates of the current year, but had been excused, on account of poverty, from paying a rate that had been payable in the preceding year. The question therefore was : Did the expression "all poor rates that have become payable" include the rate he had been excused or not ? It was argued that if these words were construed in their ordinary and strictly grammatical meaning so as to include all past rates, this absurdity might follow, that the claimant would lose his franchise.. for ever unless he paid up this old rate which he had been excused, and that therefore the language of the Act ought to be modified, and the words construed in a restricted sense. This argument, however, did not prevail. "No doubt", said Willes, J., "the general rule is that the language of an Act is to be read 'according to its ordinary grammatical construction unless so reading it would entail some absurdity, repugnancy, or injustice . . . But I utterly repudiate the notion that it is competent to a Judge to modify the language of an Act in order to bring it in accordance with his views of what is right or reasonable." Learned counsel for the petitioners has relied upon some other decisions which according to him lend support to the view taken by the Madras and Bombay High Courts. In the case of (Kavanna, Vana Ena) Swaminathan v. Lakshman Chettiar and another (A I R 1930 Mad. 490) the question of construction of section 73(1) of the Registration Act came up for consideration. The view that has been taken following the same line of reasoning as in the case of O. A. O. A. M. Muthiah Chettiar v. Commissioner of Income‑tax, Madras is that the period of thirty days will run from the date of knowledge. Learned counsel for the petitioner has then relied upon the decision in the case of Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another (A I R 1961 S C 1500). In this case the question that came up for consideration related to the meaning of the expression "the date of the Collector's Award" occurring in the proviso to section 18 of the Land Acquisition Act implies an offer to the owner or occupier. They therefore observed that the expression "the date of the Collector's Award" means "the date when the Award is made known to the owner" The next case, namely, the case of State of Punjab v. Mst. Qaisar Jehan Begum and others (A I R 1963 5 C 1604) is also on the same point and has been decided following the earlier decision. We have also considered two other decisions, namely, the decisions reported in Nripendra N. Majumdar v. N. M. Bardhan and others (A I R 1959 Cal. 219) and Kajaria Traders (Ind.) Ltd. v. Messrs Foreign Import and Export Association (A I R 1961 Bom. 65) on which Mr. Asrarul Hossain has relied. In our view, these decisions have no bearing so far as the provisions of the Income‑tax Act with which we are concerned. In our view, the period of limitation under section 33A(2) is to be counted from the date when the order is actually made and not the date when the assessee comes to know of the order or has either actual or constructive notice of the order. In this view of the matter, we hold that the petitions of the petitioners for revision have been rightly rejected as time‑barred by the Commissioner of Income‑tax. The result, therefore, is that these Rules are discharged but we make no order as to costs. SALAHUDDIN AHMED, J.‑I agree. S. Q. Rules discharged.