Sinha, J. - (1.) The facts in this case are shortly as follows : The petitioner is a company incorporated in the United Kingdom and is managed and controlled from there. For income-tax purposes, it is a nonresident. Its income includes inter alia dividends from companies (a) resident in India (b) resident outside India, but having income accruing or arising in British India. In making its returns for the years 1940-41 to 1943-44 inclusive, the petitioner proceeded on the footing that category (b) was to be excluded. In view of the decision of this High Court in the case of Raleigh Investment Co. Ltd. v. Governor-General in Council, (1943) 11 ITR 393 (Cal) (A), this was allowed. The petitioner thereafter submitted claims under Section 49 of the Indian Income-tax Act for relief against double taxation, and relief was obtained. The decision in the case of Raleigh Investment Co. Ltd. (A) (supra) was upset by the Federal Court and the Income-tax Authorities issued notices under Section 34, on the ground that the income in category (b) had escaped assessment. The petitioner thereafter made an application for income-tax relief on the basis of double taxation in respect of the additional dividend included in the re-assessment years which were effected under Section 34 proceedings'. The Income-tax Officer refused to grant relief by his order dated July 27, 1954. The petitioner filed appeals under the provisions of Rules 6 and 7 of the Rules framed in exercise of powers conferred by Section 49-A of the Indian Income-tax Act. These rules were made under Notification No. 50 dated 25th September, 1948. The relevant rules are Rules 5, 6 and 7 which are set out below : "5. No claim to any refund of Indian Income-tax or super-tax under those rules shall be allowed unless it is made within four years from the last day of the financial year commencing next after the expiry of the previous year in which the income arose, accrued or was received or was deemed to have arisen, accrued or been received or was brought into the provinces of India; 6. An applicant for refund under these rules may appeal to the Appellate Assistant Commissioner of Income-tax from any order of the Income-tax Officer disallowing the claim for refund wholly or in part. 7. The appeal shall be presented within 30 days of the date on which the order of the Income-tax Officer was communicated to the applicant and shall be in form B appended to these Rules."
(2.) I may mention here that the Income-tax Officer disallowed the claim because according to him it was barred by limitation under Rule 5. By an appellate order dated June 29, 1955, the Appellate Assistant Commissioner held that the appeal should be allowed. The Income-tax Officer appealed to the Income-tax Appellate Tribunal. Before the Income-tax Appellate Tribunal, the petitioner inter alia contended that no appeal lay because an appeal is a matter of statute and the only appeal that was allowed was under Rule 6 and no other appeal lay. By its order dated March 13, 1956 the appellate Tribunal overruled the preliminary objection and held that an appeal lay under Section 33 of the Indian Income-tax Act, but on the merits it allowed the petitioner's claim, holding that it had not been barred by limitation and relief should have been granted. Naturally, in view of the fact that the decision was in the petitioner's favour on the merits, the petitioner did not take any further steps in the matter. By four applications dated June 1, 1956, the Commissioner of Income-tax, Central Calcutta, required the Tribunal to state a case and refer certain questions of law to the High Court. These applications did not require the question as to jurisdiction to be referred, it was on June 22, 1956 that a draft statement of the case was sent to the petitioner. The petitioner thereafter gave a reply and in that reply it stated that the question as to want of jurisdiction of the Appellate Tribunal should also be referred. The reference is under Section 66 (1) of the Indian Income-tax Act, and according to rules made there under, an application asking for a reference has to be made in a particular form prescribed, with a deposit of Rs. 100/-. The petitioner admittedly did not apply in such form and did not make the necessary deposit. In fact, by the time the reply was filed, the time within which an application for reference could be made had already expired. The Tribunal, some time in July 6, 1956 drew up a case for reference to the High Court, and it does not contain any reference with regard to the point of jurisdiction, on the ground that the petitioner never applied formally for any reference upon this point. The application has now been made before me, and it is urged that the order of the Appellate Tribunal should be set aside and/or quashed because it had no jurisdiction.
(3.) The first point taken by Mr. Meyer on behalf of the respondents is a preliminary point, namely, that the petitioner had an alternative legal remedy of making an application for a reference under Section 66 (1) of the Indian Income-tax Act and as it has never filed an application to draw up a statement of case for reference, the application here is barred. The second point is also by way of a demurrer, and is upon the question of delay. It is argued that the order of the Tribunal was made on 13th of March, 1956 and the present Rule was issued on 12th September, 1956. The delay was for about 6 months and this ought to disentitle the petitioner from being granted any relief.;