9911796707
TMI Blog1952 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on order was passed on this application, and that on the April 8, 1951, he made another application stating that his previous application dated the June 24, had been mislaid. He referred in this new application to a judgment of the Madras High Court which has since been reported as Muthiah Chettiar v. Commissioner of Income-tax, Madras, in which the question of limitation was decided and prayed that his revision petition be restored and he be given a personal hearing. On the September 22, 1951, this application was dismissed on the ground that the previous order was correct. He has now come up with an application for a writ of mandamus. The order in regard to which he wishes a writ to issue is dated the June 6, 1948, and our power of issuing writs was conferred by the Constitution which came into force on the January 26, 1950. It has been held in Keshavan Madhava Menon v. The State of Bombay, that the provisions of Article 13 of the Constitution have no restrospective effect and therefore it cannot affect an act which was done before operative only on and from the January 26, 1950, the powers conferred under Article 226 cannot affect orders which had already been passed, nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35 again the words used are The Commissioner or Appellate Assistant Commissioner may, at any time within four years from the date of any order passed by him in appeal.... In Section 66 of the Act the words used are within 60 days of the date upon which he is served with notice of an order under sub-section (4) of Section 33 the assessee..... Section 67A of the Act provides for the commission of period of limitation prescribed for appeals and applications under the Act and allows the exclusion of the time requisite for obtaining a copy as also the day on which the order complained of was made. In Rule 17A of the Excess Profits Tax Rules an appeal lies to the Appellate Tribunal and the period of limitation is given in the following words ....shall be made at any time before the expiry of sixty days from the date of such order . In rule 17AA the date from which limitation begins is the date of receipt of the order. In Civil Reference No. 8 of 1948 decided by Achhru Ram and Harnam Singh, JJ., the period of limitation under Rule 17A of the Excess Profits Tax Rules was considered and it was held that it began from the date of the order and not from the date of the receipt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the plain and obvious meaning on account of such views, (as those pressed in argument on 43 Geo. 3, c. 99) we in truth do not construe the Act but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the legislature could easily have s plied, and are making the law, not interpreting it. This becomes peculiarly improper in dealing with a modern statute, because the extreme conciseness of the ancient statutes was the only ground for the sort of legislative interpretation frequently put upon their words by the Judges. The prolixity of modern statutes, so very remarkable of late, affords no ground to justify such a sort of interpretation. In Kamala Ranjan Ray v. Secretary of State for India in Council, Lord Wright observed at page 231 :- The fact seems to be that the various Acts have provided for all contingencies as to transmission and devolution of the estate, but have not provided for the special case in which the patni estate is not transmitted or devolved, but annulled and determined. It may be that there is here a casus omissus, but if so that omission can only be supplied by statute or statutory action. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, but, as was observed by Lord Ellenborough, it would be a ground for applying to parliament for revision and not for the Courts to remove the defect. In The Queen v. The Justices of Derbyshire, an information was laid before two justices stating that trust funds for repairs of a certain turnpike road were insufficient and praying for their order under the statute. Notice was given to the surveyor who attended and opposed the application. The justices made an order holding that the trust funds were insufficient and directing payment by the surveyor. The monies were to be paid on the 1st June and the 1st September, and the order was made on the April 23, 1844. The monies not having been paid warrant of distress was served with a copy of the order on the 5th July. Within six days of this order the surveyor gave the justices notice of appeal reciting that he had for the first time notice on the 5th July. Objection was taken at the court of sessions that the appeal was barred by time and that notice should have been given within six days after the adjudication. This objection was upheld. It was held that the time of appeal runs from the making of the order and not from the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of their adjudication; for what is called the order, i.e., the written record of adjudication, is merely the evidence of the order which the justices orally pronounced, and although their signatures were attached afterwards, that is to be looked on as done nunc pro tunc. Were this otherwise, it would be impossible for the opposite party ever to know the precise period at which the order was made. And although in this case the rule which I have stated may operate with great harshness on the appellant, who thought the order took effect from the time when the justices signed the written document, that is much less likely to produce confusion than if we were to hold the contrary. The Queen v. The Justices of Derbyshire was followed. Mellor, J., said at page 356 :- My brother Crompton having shewn not only the inconveniences but the absolute absurdity of counting the time for appealing from a time of which the party who means to appeal may be ignorant, or from the service of the order, I am forced to the conclusion that it must be counted from the making of the order in Court. In Firm of Mohan Lal Hardeo Das v. Commissioner of Income-tax, Bihar and Orissa, it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7(1) the words are within 30 days after the making of the order of refusal..... . The learned Judges referred to several other Madras cases, and Venkatasubba Rao J., said at page 497 :- These, in my opinion, are rules which are in conformity with justice and common sense. several English cases which I have referred to above were relied upon for holding that time begins to run from the date of knowledge and not from the date of the making of the order. In Muthiah Chettiar v. Commissioner of Income-tax, Madras, the learned Chief Justice relied upon the two Madras cases I have referred to and held that time begins to run from the date of the notice apparently on the ground that was view of the Madras high court. His Lordship said in paragraph 2 :- We see no reason to this regards the consistent course of authority in the Court on this point . In paragraph 3 the learned Chief Justice said :- ..........we consider that the rule laid down by the learned judges in the above 2 decision..........is based upon a salutary and just principle. The decision of the Madras Court must therefore be taken not to be based on the interpretation of the statue but on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
