The Commissioner of Income Tax vs Mothay Ganga Raju and Others

On the direction of the learned Judge several separate questions have been framed for our determination. In our opinion the answers to the first

three dispose of the whole matter and preclude us from going into the others. The first question is whether four applications are necessary in this

case for taking action u/s 66(2) of the Act. That is the section which says that the Income Tax Commissioner is to state a case when a proper

application is made accompanied by the proper fee--which is Rs. 100 as matters stand. These applicants were four persons. They had once been

an undivided family and, had they remained so, different considerations might arise, but they had in fact become separated and they were

separately assessed. Nevertheless an attempt was made to have a case stated regarding them all on a single fee of Rs. 100. That of course was an

impossible attitude to take up and as they were divided the result was that it was an application by four people each of whom, as my learned

brother put it, can be deemed to have paid one-fourth of the prescribed fee. I have no sympathy with the applicants because they were expressly

told or their vakil was expressly told the position by the letter from Mr. Strathie, the Commissioner, dated 13th February 1924. He points out only

one sum of Rs. 100 is deposited. There were, however, separate assessments and four appellate orders. u/s 66(2) each assessee must put in a

separate application and each must deposit the prescribed fee of Rs. 100, I cannot therefore act on the present application,

Then he goes on

If you wish me to deal with all the cases, will you please send four separate applications and an additional Rs. 300? If, however, you are willing

that only one case should be dealt with and if you tell me with which case you wish me to proceed, I shall treat the Rs. 100 as having been

received from that individual.

Nothing could be more reasonable than that and the asses-sees'' vakil could have put the whole matter right by accepting one of these two

alternatives. Instead of that the vakil sends an answer saying that, as all the questions were common to the four applicants, a reference in one will

necessarily cover the case of all. Then he says he writes to his client. He must have known time was passing and in the result the time had elapsed

before he communicated with his client and ascertained his decision as to which of the two alternatives he would accept. Thereupon Mr. Strathie

wrote the letter of the 19th February, in which he says that the time is gone for his reply, that the reply was in every case evasive (as indeed it was)

and he declined to take any further action in the matter. Thereupon, penitent too late, the vakil writes a letter at once requesting that Rs. 100 sent

with the application should be treated as deposited on behalf of M. Narasimha Rao and that a reference may be made in his case leaving the other

people over. That is the position and our answer to the question must be that the application as originally sent was defective and that the fee that

accompanied even if the application was in order was insufficient. It is not competent for four separately assessed persons to combine their

applications for a case stated of this sort in one document. But, even assuming that they may be as an instance where the points to be raised were

the same, it is obvious that as they were separately assessed their cases must be separately stated and they must pay a separate fee of Rs. 100 for

each separate assessment under the Act.

Then the next question is if the answer to question (1) is in the affirmative as it has now been answered in the affirmative whether there was no

proper application before the Commissioner for his taking action in the case of one of the applicants. The answer is, No. He had offered to do that

and his offer was not accepted.

The third question is whether there was any power to extend the period in this case or whether the Commissioner had no discretion in the

matter. The answer is that the statute fixes a time and it would be an obviously undesirable burden on the Income Tax Commissioner to put upon

him the consideration of questions as to whether he should exercise discretion in the direction of leniency in one case and not in another. The

statute is express and there is no provision in it for any official or even for the Court to extend the time. Therefore, as our answers to the first three

questions are what I have outlined, the remaining questions which, I suppose, raise the merits we are unable to deal with. Rs. 150 will be allowed

for costs of Government.

Krishnan, J.

I agree.

Beasley, J.

I agree.