JUDGMENT [The judgment of the Court was delivered by M.S.H. Qureshi, J.-For the assessment year 1969-70, the applicant/assessee applied for renewal of registration by post on 30-9-1969 which was the last date for receipt of such applications. The application actually reached the Income Tax Officer's Office on 1-10-1969. When called upon by the Income Tax Officer to explain the delay, the assessee submitted that one of its partners who had been away to Rawalpindi arrived on 30-9- 1969 and after obtaining his signature the application was sent by registered post the same day.
The explanation failed to convince the Income Tax Officer who, thereupon, rejected the application for renewal of registration for the year. The assessee's appeal Also failed before the Tribunal on 19- 4-1973. The assessee then moved the present application in this Court raising the following questions said to be of law and arising out of the Tribunal's order:- "(1) Weather&r on the facts and in circumstances of the case the submission of the renewal application through registered post on the last date of limitation prescribed for the submission of the renewal application, rendered the application time-barred?
(2) Whether on the facts and in circumstances of the case the bona fide absence of one of the partners from the Head Office of the Firm did not constitute a sufficient reason for condonation of one day's delay, if any, in the submission of renewal application?
(3) Whether on the facts and in circumstances of the case the learned Tribunal could legally ignore the proof of delay, it any, on the record and base his finding on omission to file evidence of Tribunals own choice?"
2. On the first question it has been urged that the mere putting in transmission of the application through post office on the last date was sufficient compliance of the provision of sub-section (l) of Section 26-A of the Income Tax Act and as such the application was within time, Reliance has been placed on Sri Popsing Rice Mill, Bhadrak v. Commr, of Income- tax, Bihar & Orissa, Patna [AIR 1949 Orissa 53] in which it was held in connection with an application filed under Section 66(1) that "where therefore an appellant makes an application under Section 66(1) within the period of 60 days, and puts it in transmission by post, law does not require that it should also reach the Tribunal within that period". The relevant wording of Section 66(1) is: "Within sixty days of the date upon which he is served with notice of an order under sub-section (4) of Section 33 the assessee.... May by an application in the prescribed form..... Refer to the High Court any question of law arising out of such order." The wording of sub-section (l) of Section 26-A is slightly different inasmuch as it lays down that: "Application may be made to Income Tax Officer........
Before the end of the previous year........................ " Section 26A(1), therefore, is more specific inasmuch as it requires that the application be "made" to the Income Tax Officer "before" the end of the year.
The year did end, and there is no dispute about it, on 30-9-1969. There are numerous authorities to support the view that in such situation the application is to be treated within time only if it reaches the Income Tax Officer's Office within the period of limitation. In Shanta Bai Devarao v.
Commissioner of Income Tax, Bangalore [{1963) 7 Taxation 97] it was held that an application under Section 66(1) can be deemed to have been made within the meaning of the section only when .the application is received in the office of the Appellate Tribunal and that an application which is posted before the expiry of the period of limitation but is received after the expiry of that period cannot be held to have been made within the prescribed period and is liable to be rejected as time barred. It was held in Vishwanath Gopal Oil Mills v. S.C. Prashar [(1957) 32 ITR 344] that the Post Office could be the agent of the assessee but not that of the Officer and that a letter sent on March 27, which reached the Income Tax Officer on March 31 was beyond time which extended up to March 29. In Motilal Hiralal Shisodia Firm v. Commissioner of Income Tax, C. P. & Berar {1951) 19 ITR 96], the Tribunal's decision to hold an application under Section 66(1) to be time barred which had been posted on the 59th day but had been received on the 63rd day, was upheld. In Khushi Ram Raghunath Sahai v. Commissioner of Income Tax, Punjab f{1953) 24 ITR 170], a similar view had been taken in respect of an application made under Section 66(1). We are in respectful agreement with the view taken in the above authorities that the relevant point of time is that of receipt of the application in the Office of I.T.O, and not of its despatch by post. Question No. 1 is, therefore, answered in the affirmative.
3. The other two questions relate to the refusal to condone the delay. The power to grant condonation is given in the proviso to rule 6 of the Income Tax Rules. It reads: "Provided that the Income Tax Officer may entertain an application made after the expiry of the date specified above if he is satisfied that the firm was prevented by sufficient cause from making the application within the prescribed time-limit." The authorities could, therefore, condone the delay only on satisfaction that the firm was prevented by sufficient cause from making the application in time. The case of the assessee was that the delay was on account of absence of one of its partners who arrived on the last date and as such his signature could not be obtained on the application before that date. Neither the Income Tax Officer nor Appellate Tribunal felt satisfied with this explanation. The Tribunal was of the view that in the absence of any material to show that the absence had been on account of an emergency, the delay was not unavoidable. The High Court itself has no power to condone the delay but it can direct the Tribunal to treat the application as having been made within time, only if, the High Court is satisfied that Tribunal's decision was wrong.
From the reasons given by the Tribunal, we are unable to hold that their decision was wrong, ln fact the question of acceptance of the explanation in the circumstance, is one of fact and not of law.
Questions Nos. 2 and 3, therefore, cannot be said to be questions of law arising from the Tribunal's order and as such it is not necessary to return an answer to the same.
4. The reference, thus, stands disposed of as answered above. There shall be no order as to costs..