Basant Lal Ramjidas vs Commissioner of Income Tax

Courtney-Terrell, C.J.—The first and preliminary point which has to be decided in this case is one of limitation, and it has been stated by the Commissioner for the opinion of the Court. The question is whether the application which was made u/s 66(2), Income Tax Act, by the assessee was in time reckoning the period of one month from the date of the passing of the appellate order made by the Assistant Commissioner. The appellate order was passed on 31st March 1929. The first application purporting to be u/s 66(2) was received in the office of the Commissioner on 16th May 1929, that is to say it was, if that date was to be taken as the correct date, 16 days out of time. The applicant purports on this basis to say that the 16 days was consumed in obtaining a copy of the appellate order.

On 15th April the pleader who had argued the case before the Assistant Commissioner sent a letter to the office of the Assistant Commissioner accompanied by a one-anna stamp asking for a copy of the Assistant Commissioner''s appellate order. He further asked to be informed of the estimate of cost for the certified copy and said that on receipt of that notification he would deposit the sum in the local treasury. Furthermore, his application was not accompanied by a vakalatnama from the assessee expressly authorizing him to obtain a copy of the Assistant Commissioner''s decision. The applicant was asked by postcard to file a court-fee stamp of two annas as well as an express authorization to enable the pleader to obtain the copy.

On 21st April he did in fact file the authorization and the court-fee stamp of two annas and his application was then found to be in order and the copy was made ready on 3rd May and was despatched by post to the address of the applicant and received by him, it must be presumed, on 4th May. Such are the facts as found by the Commissioner.

The department say that the application of 15th April was not an application at all. It suffered from two defects which prevented it from being considered as such, the first defect being that it did not bear a stamp of two annas but one of one anna only; the second being that, it did not contain an express authorization in writing signed by the assessee himself. In answer to this objection by the department the assessee contends that the fee of two annas cannot legally be exacted. If we turn to Schedule 2, Court-fees Act, we see set forth detailed provisions as to certain documents in the nature of applications or petitions which must bear the stamp fee prescribed by the particular Local Government, the matter of the precise stamp fee being within their purview as independent finance authorities. Now the scale of so-called fixed fees set forth in this schedule is divided up into classes respectively marked (a) and (b). Taking the documents referred to in group (a) first, the first paragraph refers to applications or petitions which are made by any persons having dealings with the Government and relating to the subject-matter of these dealings when such application is presented to any officer of the Customs or Excise department or to any Magistrate, and a fee of two annas is leviable upon such applications. The second paragraph refers to applications or petitions by persons holding temporarily settled land under direct engagement with the Government and relating to such subject-matter.

The third paragraph refers to applications which relate to conservancy or improvements of a municipal character. The fourth paragraph refers to applications to civil Courts and Small Cause Courts and to Collectors of revenue in cases where the amount of the value of the subject-matter is less than fifty rupees. The fifth paragraph, which is one with which we are particularly concerned, refers to applications for obtaining copies or translations of judgments, decrees or orders which have been passed by Courts Boards or officers and in respect of those applications also a fee of two annas is required. That particular paragraph opens with the words

or when presented to any civil, criminal or Revenue Court or to any Board or executive officer,

and it is argued by Mr. Jayaswal on behalf of the assessee that in this matter the Assistant Commissioner cannot come under the head of the Revenue Court; and he is not, according to his argument, an executive officer and therefore that judgments, decrees or orders which are passed by him do not come within the purview of this paragraph. In my opinion that is giving in the first place undue weight to the first words of the paragraph which are not the most material words. The most material words of the paragraph are the words judgments, decrees or order passed by such Court, Board or officer" and they are intended to cover every case of every kind in which a judgment, decree or order has been passed by any Court, Board or officer capable of passing such judgment, decree or order and having regard to what I think is the proper meaning of the words it certainly covers an application to an Assistant Commissioner of Income Tax who has power to make the order and a copy of whose order is necessary for the purpose of preferring an appeal to the Commissioner under the Income Tax Act.

The second defect in the notice of the 15th April was that it was not properly authorized by vakalatnama. The justification for the demand of such express authorization is to be found in two matters in the Income Tax Act. In the first place there is Section 61 which states as follows:

Any assessee, who is entitled or required to attend before any Income Tax authority in connexion with any proceedings under this Act, may attend either in person or by any person authorized by him in writing in this behalf.

The next point to be considered in the Income Tax Act is that the proceedings are of a most secret character and heavy penalties are imposed upon any officer who makes disclosures of matters which under the Act are confidential and nothing can be considered more confidential than the actual assessment which is made. Now it does not follow that because an agent is duly authorized to conduct the business of the appeal before the Assistant Commissioner he is ipso facto authorized to obtain copies of the Assistant Commissioner''s judgment or indeed to perform any act preparatory or incident to the conduct of an appeal. It is, as the learned Assistant Government Advocate points out, quite conceivable that whatever the merits of the gentleman who was employed in conducting the appeal before the Assistant Commissioner his services may be dispensed with after the matter had passed the Assistant Commissioner''s hands; and it is quite conceivable that circumstances might arise in which it was considered by the assessee highly undesirable that he should receive copies of the decision which had actually been given. In these circumstances it was reasonable and proper for the department to require that any person asking for a copy of the judgment should be expressly authorized in writing in that behalf and the application for a copy of the judgment is properly within the meaning of Section 61--"attendance before an Income Tax officer"--in connexion with proceedings under the Act. Inasmuch as the application dated 15th April cannot be considered to be a valid application, and inasmuch as the authorities are not bound to take any notice of an application which is not in order the time which the assessee was entitled to deduct would only run from 21st April when he in fact put his application in order forwarding the proper stamp and the letter of authorization and in these circumstances the time which he is allowed to deduct falls short by one day of the allowance which would bring him within the period of one month. In these circumstances the application before the Commissioner for the statement of the case was barred and we are not competent to go into the other matters which were raised by the Commissioner on the hypothesis that his view as to limitation might be unsound.

I would therefore answer the question of the Commissioner as to whether the application before him was barred in the affirmative and would decline to go into the other points raised in the statement of the case. The application to state a case was made at the instance of the assessee who fails and he must pay Rs. 200 by way of costs.

Dhavle, J.

I agree.