Wealth Tax Act (XV of 1963)---

----S.27(9)---Income Tax Appellate Tribunal has no jurisdiction to condone the admitted delay in presenting the applications for reference.

Subsection (9) of section 27 of the Wealth Tax Act, 1963 provides that section 5 of the Limitation Act; 1908, shall apply to an application to the High Court under section 27 and does not provide that section 5 of the Limitation Act, 1908 applies to the application to Appellate Tribunal as well. Therefore, the Tribunal has no jurisdiction to condone the admitted delay in presenting the applications for reference and is bound to dismiss the reference applications as barred by time.

S.H: Mahmood v. Assistant Commissioner PLD 1951 BJ 42; Official Receiver v. I.T.O. (1945) 13 ITR 112; Bansilal Gulab Chand v. C.I.T. Bombay (1948) 16 ITR 251; Haji Mehboob Bakhsh Ehsan Ellahi v. CIT U.P. (1950) 18 ITR 72;"Govind Singh Bhagwan Singh v. ITO (1972) 84 ITR 214; CIT v. Assam Oil Co. (1972) 83 ITR 456; C.I.T. v. National Finance Ltd. (1962) 44 ITR 788; Sripop Singh Rice Mill v. C.I.T. (1949) 17 ITR 420 and Govinda Chaudhary v. CIT, Behar and Orissa (1960) 40 ITR 93 ref.

Sirajul Haq Memon for Applicant.

Humayun Zaidi, D.R. for Respondent.

Date of hearing: 3rd May, 1992.

ORDER

HUHAMMAD MUJIBULLAH SIDDIQUI (JUDICIAL MEMBER).---The above reference applications are admittedly barred by limitation by one day. The applicant has submitted application for condonation of delay stating that the reference applications were to be filed on 24-2-1992 being the last date of the limitation period. On 24-2-1992 a peon of the office of the learned counsel for the applicant submitted six challans before the National Bank of Pakistan, Club Road Branch, Karachi for the payment of reference fee for each of the years under reference. The said Brach of National Bank of Pakistan does not accept more than three challans from a person at a time, as such three challans were received while three challans were returned to the peon at the closing time. i.e. 1-00 p.m. After attaching three challans for three years reference applications, the peon rushed to the office of the Income Tax Appellate Tribunal to file the references but because of transport problem he reached Income-tax Appellate Tribunal's office slightly after 2-30 p.m. At that time the Registrar had already left the office and no other person authorised to receive the reference applications was available. One Assistant Registrar, namely, Muhammad Hussain Khawaja (who is not authorised to receive the appeals/applications) was available to whom the applications were presented. Mr. Khawaja informed the peon that the office time was already over and the Registrar has left the office and that he could not receive the reference applications in his absence. The peon, therefore, returned back without filing the reference applications. The remaining three challans were paid on 25-2-1992 and thereafter all the six reference applications were presented on 25-2-1992 in, the office of this Tribunal. Mr. Sirajul Haq has submitted that the reference applications are late by one day due to unforeseen circumstances. The learned D.R. has opposed the condonation of delay and has submitted that no sufficient cause has been. shown for condonation of delay in presenting the reference applications.

3. We have carefully considered the contentions raised by the learned representatives for the parties. We are of the considered opinion that the applications for condonation of delay are not maintainable. The reason being that the reference applications have been submitted under section 27 of the Wealth Tax Act, 1963. The period of limitation is also governed under the provisions contained in this special statute. It is provided in subsection (1) of section 27 that within 90 days of the date upon which he is served with an order by the Appellate Tribunal, the assessee or the Commissioner, may present an application in the prescribed form.

4. It is further provided in subsection (4) of section 27 that if on application made under subsection (1) the Appellate Tribunal refused 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 ninety days from the date on which he is served with the notice of 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, frame the question of law and proceed to hear the case.

5. It is further provided in subsection (9) of section 27 under which the condonation applications have been submitted in these proceedings that section 5 of the Limitation Act, 1908 shall apply to an application to the High Court under this section.

6. It has not been provided anywhere in section 27 or any other provision of the Wealth Tax Act, 1963 that section 5 of the Limitation Act, 1908 shall apply to an application to the Appellate Tribunal. So far the applicability of section 5 of the Limitation Act without any specific provision in this behalf in the Wealth Tax Act is concerned, it is specifically excluded under section 29(2) of the Limitation Act which provides as follows:--

"(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply, as if. such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

(a) the provisions contained in section 4, sections 9 to 18, and section. 22 shall apply only in so .far as, and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply."

7. A perusal of above section clearly shows that section 29(2)(b) of the Limitation Act has specifically provided that except sections 4, 9 to 18 and 22 all remaining provisions of the Limitation Act shall not apply to any special or, local law. There can be no cavil to tire proposition that the Wealth Tax Act, Income Tax Ordinance, Sales Tax Act and other such enactments are special laws in their nature. We have already shown that in subsection (9) of section 27 it has been provided that section 5 of the Limitation Act, 1908 shall apply to an application to the High Court under section 27 and it has not been provided that section 5 of the Limitation Act, 1908 applies to an application to the Tribunal as well. A similar situation was existing under section 66 of the Income Tax Act, 1922 up to the year 1956. It was provided under subsection (1) of section 66 of the Income-tax Act; 1922 (hereinafter referred to as the Repealed Act) that within sixty days of the date upon which he is served with the notice of an order under subsection (4) of section 33, the assessee or the Commissioner may, by application in prescribed form accompanied, where application is made by the assessee, by a fee of one hundred rupees, require the Appellate Tribunal to refer to the High Court any question of law arising out of such order. It was further provided in subsection (2) of section 66 that if on an application made under subsection (1) the Appellate Tribunal refused 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 ninety days from the date on which he is served with notice of the refusal, apply to the High Court and the High Court if it is not satisfied with the correctness of the decision of the Appellate Tribunal frame a question of law and proceed to hear the case.

8. It was further provided in subsection (7-A) of section 66 of the Repealed Act that section 5 of the Limitation Act, 1908, shall apply to an application under subsection (2) or subsection (3). Thus, under the Repealed Act, section 5 the Limitation Act, 1908, was made applicable to an application to the High Court and it was not applicable to the application to the Tribunal under section 66(1). Subsection (7-A) of section 66 of the Repealed Act was amended by the Finance Act, 1956 and `subsection (1)' was also included therein with the result that section 5 of the Limitation Act, 1908, was made applicable to an application under subsection (1), subsection (2) and subsection (3) of the section 66. Thereafter various amendments were introduced from time to time in subsection (7-A) of section 66 of the Repealed Act with which we are not concerned for the time being. The unamended provision of subsection (7-A) of the section 66 of the Repealed Act came for consideration before Baghdadul Jadid High Court in the case of S.H. Mahmood v. Assistant Commissioner P L D 1951 BJ 42 and it was held that the period of limitation could not be condoned by the Tribunal.

9. The relevant provisions :on the point of limitation and the power to condone the delay contained in the Repealed Act came for consideration before the Madras High Court in the case of Official Receiver v. I.T.O. (1945) 13 ITR 112. It was held by Honourable Justice Leach, C.J. that the Tribunal had no power to extend the period of limitation. After independence and creation of Pakistan, the relevant provisions contained in subsection (7-A) of section 66 of the Repealed Act, remained similar in Pakistan and India till insertion of amendment in Pakistan by Finance Act, 1956. The point in issue came for consideration before the Bombay High Court in the case of Bansilal Gulab Chand v. C.I.T. Bombay (1948) 16 I T R 251 and it was held by Honourable Justice Chagla, CJ. that subsection (7-A) of section 66 does not apply to applications to the Tribunal under section 66(1). It only refers to application to the High Court by an assessee under subsections (2) and (3), Justice Chagla, CJ. observed that there was serious lacuna in the Act, and we can do no better than to reproduce the observations of Justice Chagla in the concluding part of the judgment cited above which reads as follows:--

"We sincerely hope that the Legislature will attend to this question as soon as possible because this discloses a very serious lacuna in the Act and we are sure the Legislature could not have intended that no power should be given either to the Tribunal or to the High Court in any case and in any circumstances to condone delay in making applications under section 66(1). But this is more a matter for the Legislature than for us and we cannot do more than merely express a hope that the Legislature will suitably amend the Act in the near future."

10. The similar point came for consideration before Allahabad High Court in the case of Haji Mehboob Bakhsh Ehsan Elahi v. C.I.T. U.P. (1950) 181 T R 72. Honourable Justice Malik, CJ. speaking for the Court concurred with the view expressed by the Bombay High Court in Bansilal Gulab Chand v. C.I.T. Bombay (cited supra). Mr. Justice Malik, CJ. also observed that it was for the Legislature to consider that section 5 of the Limitation Act should be made applicable to applications under section 66(1) and to amend the Act. It was held that relief cannot be granted to the assessee on the ground that there was sufficient cause for delay.

11. The issue again came for consideration before Allahabad High Court in the case of Govind Singh Bhagwan Singh v. I.T.O. (1972) 84 1 T R 214 and Mr. Justice Pathak, held that the Appellate Tribunal was right in taking the view that it had no jurisdiction to condone the delay under subsection (7-A) of section 66 of the Income Tax Act, 1922, as section 5 of the Indian Limitation Act, 1908 applies to subsections (2) and (3) only of section 66 and does not apply to an application under subsection (1) of section 66. According to Mr. Justice Pathak the Appellate Tribunal was bound to dismiss the reference application as barred by time.

12. A similar view was taken by Calcutta High Court in the case of C.I.T. v. Assam Oil Co. (1972) 93 1 T R 456 wherein it was held by Justice Mukharji, Actg. CJ. that the Tribunal has no power to condone any delay in the presentation of an application under section 66(1). It was further held as follows:-

"The expression `to an application to the High Court by an assessee' is significant to show that section 5 of the Limitation Act was made applicable to the High Court and not to the Tribunal which, therefore, remained excluded from the operation of section 5 of the Limitation Act. This analysis of the Indian Income-tax Act, 1922, confirms the view that there is no power in the Tribunal to condone breach of the time prescribed under the Act."

13. It was further held in the above judgment that there was lacuna in this respect which has been removed under the Income Tax Act, 1961.

14. The point in issue was considered by the Supreme Court of India as well in the case7 of C.I.T. v. National Finance Ltd. (1962) 44 I T R 788. Mr. Justice Hidayatullah held as follows:--

"Actually the application was barred by a day. The Income-tax Tribunal, therefore, dismissed the application on December 4, 1957. The decision of the Tribunal was unsuccessfully challenged before the High Court. It is evident that the decision of the Tribunal was quite correct and the Tribunal had no option but to dismiss the application, since the law gives no jurisdiction to the Tribunal to extend limitation, as is done under section 5 of the Indian Limitation Act."

15. Mr. Sirajul Haq Memon, learned counsel for the applicant has pointed out that a different view was expressed by Orissa High Court only in Sripop Singh Rice Mill v. C.I.T. (1949) 17 I T R 420 but after overwhelming view to the contrary held by the other High Courts in India a Full Bench was e contrary constituted by the Orissa High Court to consider its earlier view toand the Full Bench in Govinda Chaudhry v. C.LT., Behar and O overruled the view taken in Sripop Sing h Rice Mill v. C.I.T.

16. A resume of the case-law on similar provisions contained in the Repealed Income Tax Act, 1922 in Indian jurisdiction shows that the Tribunal had no jurisdiction to extend the period of limitation or condone the delay in resenting the reference application presented before it after the expiry of period of limitation. Similar situation is prevailing under the provisions 1963, which contained in subsection (9) of section 27 of the Wealth Tax Act that section 5 of the Limitation Act, 1908, 'shall apply to an application provides to the High Court under section 27 and does not provide that section 5 of the Limitation Act, 1908 applies to the application to Appellate Tribunal as well. It is therefore, held that this Tribunal has no jurisdiction to condone the admitted delay in presenting the application for reference, and therefore, we are bound to dismiss the reference applications as barred -by time which we do accordingly.

17. All the reference applications stand dismissed as barred by time.

M.BA./1625/T Applications dismissed.