1960 PLP 301 (PTD)

AMIN AHMED, C. J.‑These four applications purported to have been made under subsection (2) of section 66 of the Income‑tax Act, 1922 as adapted in Pakistan are on behalf of an assessee. All these applications lave been heard together as analogous matters, as they involve one and the same point, and are against an order made by the Appellate Tribunal under subsection (1) of section 66 of the Income-tax Act refusing to make a Reference to this Court. These applications, as it appears, from the records, were presented before the Deputy Registrar of this Court on the 18th of January 1955. In respect of each of these applications a Rule was issued on the 16th of March 1955, as follows; "Let a Rule issue on the Income‑tax Appellate Tribunal and the Commissioner of Income‑tax to show cause why the Tribunal shall not be directed to state the following question of law raised in the petition of the petitioner for the opinion of this Court; "Whether the Tribunal was justified in law in dismissing the appeal for default without applying its mind to the assess ment or the order which was the subject of the appeal as required by section 33, subsection (4) (b) of the Income‑tax Act, or such other or further order or orders passed as to this Court may seem fit and proper. Let similar Rules issue in Applications Nos. 3, 4 and 5 of 1955." Application No. 2 of 1955 is in respect of the order of assess ment of the year 1944‑45 against which Appeal No. 457 of 1952‑53 was filed before the Income‑tax Tribunal against the order of the Appellate Assistant Commissioner of Income Tax. Application No. 3 of 1955 is in respect of the order of assessment of the year 1945‑46 against which Appeal No. 458 of 1952‑53 was filed before the Income‑tax Tribunal against the order of the Appellate Assistant Commissioner of Income Tax. Application No. 4 of 1955 is in respect of the order of‑assessment of the year 1946‑47 against which Appeal No. 459 of 1952‑53 was filed before the Income Tax Tribunal against the order of the Appellate Assistant Commis sioner of Income‑tax. Application No. 5 of 1955 is in respect of the order of assessment of the year 1947‑48 against which Appeal No. 460 of 1952‑53 was filed before the Income-tax Tribunal against the order of the Appellate Assistant Commissioner of Income‑tax. All these appeals mentioned above were fixed for hearing before the Appellate Tribunal on the 13th of November 1953. On that date the Pleader for the assessee appeared and prayed for an adjournment, and an adjournment was granted, and hearing was fixed for the 16th of November 1953. As no one appeared on the 16th of November 1953, the appeals were dismissed for default. Against this order of dismissal for default, the assessee made Miscellaneous Application No. 2 of 1953‑54 for restoration of the Appeal No. 457 of 1952‑53 out of which the Application No. 2 arises, and similar other applications for‑ restoration in respect of the other three cases that were dismissed for default, were also filed. These applications were rejected. Thereafter in respect of all these cases the assessee made applications under subsection (1) of section 66 of the Income‑tax Act, and were also refused. Hence the present four applications under sub‑section (2) of section 66 of the Act were made before this Court, and a Rule was issued in each case as already indicated. Mr. Pakrasi, the learned Advocate for the assessee, argues the point he argued, it seems, at the time he obtained the Rule; that inasmuch as in dismissing the cases for default, the Tribunal did not apply its mind as required by section 33, subsection (4) (b) of the income‑tax Act, the Tribunal erred in not making a Reference to this Court, and should be required by this Court to state a case, and make a Reference to the Court in the form mentioned in the Rule issued. Mr. Mesbahuddin who appears for the opposite party points out that these applications are not applications under subsection (2) of section 66 as they are purported to have been made, but they are really applications under subsection (3) of section 66 of the Income‑tax Act. The learned Advocate has taken us through the records, and particularly through paragraph 3 of the order of the Income‑tax Appellate Tribunal, dated the 5th of November 1954, contained in Annexure `A' to the applications rejecting the application for Reference under sub section (I) of section 66 of the Income‑tax Act. Paragraph 3 runs thus; "The present applications for Reference are directed against the order of refusal to restore the appeals already dismissed for default. But no Reference lies against such an order. Section 66 (1) provides that within 60 days of the date upon which be is served with notice of an order under sub section (4) of section 33 the assessee or the Commissioner may apply to the Appellate Tribunal to refer to the High Court any question of law arising out of such order. The proper course for the assessee, if he wanted to take the matter to the Hon ble High Court, was to make an application within 60 days of the date upon which he was served with the Tribunal s order under section 33 (4) (date of service being 27th January 1954), and ask the Tribunal to refer to the Hon'ble High Court such question of law as arose out of that order. Questions Nos. I and 2 arise out of the Tribunal's order, dated the 19th June 1954, refusing to restore the appeals, and this fact was admitted by the assessee himself in Annexure `A' Question No. 3 arises out of the original order of dismissal, but then the application has been filed more than 60 days after the service of the order, dated the 16th November 1953." Mr. Mesbahuddin makes a point that inspite of this order of the Income‑tax Appellate Tribunal pointing out that the application was time‑barred, and what the proper remedy of the assessee was, the assessee refused to adopt the procedure so clearly Indicated by the Tribunal itself, and instead chose to make the present applications under subsection (2) of section 66, and not under subsection (3) of section 66 of the Income‑tax Act. Subsections (2) and (3) of section 66 of the said Act are as follows; "(2) If on any application being made under subsection (1) the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may within six months from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer' it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly. "(3) If on any application being made under subsection. (1) the Appellate Tribunal rejects it on the ground that it is time‑barred the assessee or the Commissioner, as the case may be, may within two months from the date on which he is served with notice of the rejection, apply to the High Court, and the High Court, if it is not satisfied of the correctness of the Appellate Tribunal's decision, may require the Appellate Tribunal to treat the application as made within the time allowed under subsection (1)." Relying on subsection (3) of section 66 of the Act the learned Advocate for the opposite party urges that although these applications would not be time‑barred if they are treated as applications under subsection (3) of section 66 of the Income-tax Act as all these applications were presented before this Court within two months of the assessee receiving the order rejecting the Reference, which is the 19th of November 1954, these applications have not been made to this Court under subsection.(3) of section 66 inasmuch as nowhere it is stated in these applications that the Tribunal erred in holding that the applications before them for making Reference to this Court were time barred, and that this Court should require the Tribunal to treat the said applications made before them as made within the time allowed under subsection (1) of section

66. This contention of the learned Advocate for the respondent, in our opinion, must prevail, for it appears that not only the petitioner describes his petitions as those under subsection (2) of section 66 of the Income‑tax Act, but also in the prayer of all these petitions he prays to this Court that the Appellate Tribunal should be asked to state a case, and make a Reference to this Court on the point of law formulated in his petition, and on that basis the rules set out above were also issued in all these cases. It is rightly com mented by the learned Advocate for the respondent that even if the petitioner did not know what procedure he adopted, he did not avail of the procedure laid down in subsection (3) of section 66 expressly pointed out by the Appellate Tribunal themselves at the time they rejected the applications for making Reference to this Court. When this was pointed out to the learned Advocate for the assessee he stated that he would like to adopt this course now. We cannot allow that for clearly it will appear from what we have stated already that if the date of presentation of these petitions is taken as the date of filing these petitions with effect from the date of the service of the order rejecting the Reference received by the assessee on the 19th of February 1954, he will be just within time for filing these applications under subsection (3) of section 66 as 18th January 1955, was the last date for filing these applications before this Court, and if we allow him now to make an application under subsection (3) of the Act it would be allowing him to make these applications more than one year and 3 months after the period of two months expressly mentioned in subsection (3) of section 66 and this we cannot do. The result, therefore, is that all these applications are dismissed, and the Rules are accordingly discharged. In the circumstances of the case we do not award any costs. RAHMAN, J.‑I agree. Applications dismissed.