Mohapatra, J.
1. This is a petition under Section 66(3), Income-tax Act, 1922, the petition of the assesses under Section 68 (1) of the Act requesting the Income-tax Appellate Tribunal, Calcutta Bench, to state a case to the High Court having been rejected as barred by limitation by the order of the said Tribunal on 23-4-1952. The order of the Tribunal dated 30-10-1951 passed under Section 33(4) of the Act was served on the petitioner on 3-11-1951. The period of limitation of 60 days for filing application under Section 66(1) of the Act expired on 2-1-1952. The application under Section 66(1) was received by the office of the Tribunal on 2-1-1952 by post, that is, within time. Under the provisions of Section 66(1) this application was to be accompanied by the requisite fee of Rs. 100/-. This fee of Rs. 100 was however received by money order by the Office of the Tribunal on 4-1-1952. The Tribunal consisting of two members (one Judicial member and the other Accountant member), relying upon a decision of their Lordships of the Allahabad High Court, reported in -- 'Hajee Mahboob v. Commr. of Income, U.P.' : [1950]18ITR72(All) (A) rejected the petition of the petitioner as barred by limitation.
Their Lordships of the Allahabad High Court observed;
'An application under Section 66(1), Income-tax Act, 1922, requesting the Appellate Tribunal to state a case to the High Court is not complete fill it is accompanied by a fee of Rs. 100/- and where the fee is received after the expiration of limitation, the Appellate Tribunal has no power to excuse the delay and the Tribunal will be justified in rejecting the application as barred by limitation.'
Against this order of the Tribunal the petitioner has filed this petition under Section 66(3) which, provides that if the appellate Tribunal rejects the petition under Sub-section (1) as barred by limitation, on the application of the assessee the High Court can examine the correctness of the decision of the Appellate Tribunal, and if the High Court is satisfied that the Appellate Tribunal's decision is wrong, the Tribunal shall be directed to treat the petition under Section 66(1) as within time and decide the petition on merits.
2. The petitioner states in his affidavit that the requisite fee of Rs. 100 could not be deposited as 31-12-1951 was a Bank holiday and
'that the fee of Rs. 100/- was sent by money order on the same day that is 31-12-1951; and that a separate petition was made to the Tribunal stating these facts and intimating to them that the fee is being sent by money order due to 31-12-1951 being a Bank holiday.'
On these allegations, the petitioner strongly relies upon a decision of our High Court reported in -- 'Popsing Rice Mills Bhadrak v. Commr. of Income-tax, B. & O.' AIR 1949 Ori 53 (B). The relevant rules for sending the application by post are contained in Rule 7(1) and 2. Prima facie the provisions of Rule 7 apply to appeals only; but by virtue of the provisions of Rule 36, they also apply to applications under Section 661. Their Lordships observed that the Rule should be read without sub-rule (2), and when the applicant had done all that he was required, in his power, to do by sending the application by registered post in time, in order to require the Tribunal to refer to the High Court any question of law arising out of its order, there Was substantial compliance of the law and the application could not be rejected as barred by limitation even though it reached the Tribunal beyond the period of limitation.
3. A different view however has been taken by some of the other High Courts: -- 'Motilal Hiralal v. Commr. of Income-tax, C. P. & Berar', AIR 1951 Nag 224 (C) & --'Firm Khushi Ram Raghunath Sahai v. Commr. of Income-tax, Punjab' AIR 1953 Pun 300 (D). There is also a decision of Chagla C. J.' sitting with Tendolkar J. of the Bombay High Court in the case of -- 'Bansilal Gulabchand v. Commr. of Income-tax, Bombay (Molussil)' AIR 1948 Bom 431 (E) laying down that the High Court has no power to excuse delay; the only question which has got to be determined on the application under Section 66(3) of the Act is whether the Tribunal was justified in rejecting the application as barred by limitation; and the Tribunal has no power to condone delay. A recent Supreme Court decision reported in -- 'Commr. of Income-tax, Bombay v. Ogale Glass Works, Ltd.' : [1954]25ITR259(SC) (F), may throw some light on the question. In this position of the decisions, a Division Bench of this Court has referred the case to be decided by us with the observation that
'this case involves an interesting question of law as to whether where a sum of Rs. 100/- is remitted by money order by an assessee along with an application under Section 66(1), Income-tax Act before the expiry of the period of limitation but is received at the office of the Income-tax Appellate Tribunal after the expiry of the period of limitation such an application would be valid application for the purpose of Sub-section (1) of Section 66 or else whether it would be time barred.'
4. Indeed here the application under Section 66(1) reached the Tribunal on 2-1-1952, that is, within time; but the requisite fee which, under the law, is to accompany the application, reached the Tribunal by money order on 4-1-1952. The petitioner relies upon the position that he had sent the money through money order on 31-12-1951 that is, within the period of limitation and as such his application is within time. On a close scrutiny of the facts of the case, we find that the basic fact which will raise the above question of law has not been proved in the present case by the petitioner. It is not proved that in fact, the petitioner had sent the requisite fee of Rs. 100 on 31-12-1951 by post. Neither the postal receipt granted to the remitter at the time of remittance nor any Other record of the Post Office is produced to show that in fact the petitioner had sent the requisite fee for Rs. 100/-on 31-12-1951. The only material which is intended to be relied upon by the petitioner, is para. 7 of the affidavit 'that the fee of Rs. 100/- was sent by money order on the same day, i.e., on 31-12-1951'. This affidavit has been sworn by one Satrughana Swain (a clerk of the Advocate) for the petitioner, and the deponent states in the affidavit that the facts are true to his knowledge based on records. There is no affidavit even to the effect that it was he or the petitioner who sent the money order. It is quite possible that the money was sent by telegraphic money order on 4-1-1952, that is, beyond the period of limitation. In our view, in the absence of proof of the basic fact that the money was sent through the Post Office before the expiry of the period of limitation the aforesaid position of law does not arise at all for the determination of the present petition under Section 66(3) of the Act nor do we, in the circumstances, feel called upon to express any opinion on the question of law.
5. In our view, therefore, on the position that, the requisite fee which was to accompany the application under Section 66(1) of the Act having been received by the Office of the Tribunal beyond the period of limitation, the Appellate Tribunal was perfectly justified in rejecting the application at barred by limitation. This petition has, therefore, no merit and is accordingly dismissed with costs. Hearing fee is assessed at Rs. 100/- (rupees one hundred).
Panigrahi, C.J.
6. I agree.
P.V.B. Rao, J.
7. I agree.