Patiala Cement Co. Ltd., Surajpur vs Commr. of Income Tax, Punjab and Pepsu

This is an application by the Patiala Cement Company Limited, Surajpur, against the Commissioner of income tax, for a certificate that the case is a fit one for appeal to the Supreme Court under S. 66-A, Indian income tax Act.

The judgment of this Court under S. 66 of the Indian income tax Act was delivered on 26-5-1954. The present application was presented en November 1, 1954. It is stated in this application that it "is prima facie time-barred." But two grounds have been urged why the delay should be condoned. The first ground is that the opposite party has been granted a certificate of fitness for appeal to the Supreme Court against a part of the judgment of this Court, and the second ground is that the applicant''s counsel received instructions from his client only on the evening before the date of the application. Neither is in any sense either adequate or sufficient ground for condoning the delay in making the application.

However, at the time of the arguments, the Learned Counsel for the applicant has contended that no period of limitation for such an application has been provided and so the application is not time-barred. The reply of the Learned Counsel for the Commissioner of income tax is that Article 179 of the Limitation Act applies to such an application and as it has been made long after the expiry of ninety days from the date of the judgment of this Court, it is time barred.

The Learned Counsel for the applicant points out that Art. 179 relates to an application by a person desiring to appeal "under the CPC to the Supreme Court, for leave to appeal" and the time from which period begins to run is "the date of the decree appealed from," and the present application is not under the CPC and the judgment from which a certificate for leave to appeal is asked for is not a decree. It is true that in sub-s. (2) of S. 66-A the mention is to a "judgment of the High Court delivered on a reference made under S. 66", but there is no doubt that the use of the word "Judgment" therein is not in the sense as an adjudication by the Court upon the rights of the parties and a final declaration or determination of those rights, since the judgment under S. 66 is only in the nature of a consultative or advisory judgment. The Learned Counsel for the income tax Commissioner with reference to O. 45, R. 1, Civil P.C., contends that such a judgment amounts to a final order within the scope of that rule, but the argument is obviously untenable inasmuch as such a judgment of the High Court is merely advisory and the final and operative order in consequence of it is to be passed by the income tax Tribunal.

Sub-section (3) of S. 66-A, Indian income tax Act provides:

The provisions of the Code of Civil Procedure, 1908, relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case of appeals from decrees of a High Court.

Thus the provisions of the CPC apply to appeals to the Supreme Court under S. 66A and for that matter those appeals are to be treated as if appeals from decrees of a High Court, which means that for all practical purposes the appeal under S. 66-A are to be treated under the CPC and the judgment of the High Court under S. 66 is to be treated in the manner of a decree of a High Court. Upon this consideration there is no difficulty in reaching, the conclusion that Art. 179 of the Limitation Act applies to an application for a certificate of fitness for appeal to the Supreme Court under S. 66-A. This view finds support from the observation of Rankin C.J., in - Commissioner of Income Tax Vs. M. Shaw Wallace and Co., ), which was also a case of an application for a certificate under S. 66-A of the income tax Act and in which the question of limitation had been raised. The learned Chief Justice observed:

It appears to me, when one comes to look at the Article in the Limitation Act applicable, that the case must be governed by Article 179, rather than by Article 181 and I think, therefore, that the date of the judgment in a case of this sort must be the date from which the time has to be counted.

In that case the judgment under S. 66, income tax Act, was treated as parallel to a decree of the High Court and the application was considered as one under the Code or Civil Procedure. The present case is in no wise different.

It is not denied on either side that if Art. 179 of the Limitation Act applies the application is time-barred. In the view taken above, I am of the opinion that this application is time-barred and so it is dismissed, but no order is made as regards costs.