AKHTAR BROS. & CO. Versus COMMISSIONER OF INCOME-TAX

1. MUSHTAQ HUSSAIN, J.--‑ Messrs Akhtar Brothers & Co., Lahore, applied for registration as a firm in respect of the assessment year 1959‑60. The case took along time to decide and it was only on 6‑7‑1962 that the firm was registered. For the assessment years 1960‑61 and 1961‑62 application for renewal of the registration was made on 15‑9‑1962, i.e., 2 month and 9 days after the decision on the initial application for registration.

2. The Income‑tax Officer G (1) Ward, Lahore, found that the application for renewal of registration was filed after expiry of the time allowed by the law and no case having been made out for condonation of the delay, the application for renewal was rejected by his order dated 30‑4‑1963.

3. The assessee successfully filed an appeal before the Appellate Assistant Commissioner who by his order dated 12‑2‑1964 accepted the same and ordered that‑

4. "The Income‑tax Officer's action in refusing to entertain the applications is unjustified and he is directed to admit those applications and consider them on merits."

5. The Department did not agree with the order and filed an appeal which was accepted by the Income‑tax Appellate Tribunal by Its order dated 1‑12-1965. The Tribunal came to the conclusion that‑

6. "If the only reason for not filing the applications for renewal by the due dates was the non‑receipt of the certification of registration for the year 1959‑60 it should have come up with the applications soon alter the orders allowing registration for the earlier year had been received by it. This was admittedly not done. No sufficient cause for the delay has been shown and 1n my view the Appellate Assistant Commissioner had gone wrong in directing the I. T. O. to admit those applica tions and consider them on merits."

7. The assessee moved the Tribunal under section 66 (1) of the income‑tax Act praying that a statement of the case be drawn up and the question of law arising out of the Tribunal's decision be referred to this Court for opinion.

8. This application was accepted and by its order dated 15 th December 1966, the following question has been referred to us for opinion by the Tribunal:‑

9. "Whether In the facts and circumstances of the case the Tribunal was justified in not condoning the delay in presentation of the applications for renewal of registration to the Income‑tax officer in respect of the years 1960‑61 and 1961‑62."

10. Our answer to the question is in the negative, that is to say, the Tribunal was not justified in not condoning the delay. Our reasons follow:--

11. Rule 2 of the Income‑tax Rules, 1922, as amended in 1954 and 1960 provides for the manner in which an application on behalf of a firm constituted under an instrument of partnership has to be made for its registration. The form also has been prescribed by this very rule. Rule 6 provides for an applica tion for the renewal of registration for a subsequent year by a firm " to whom a certificate of registration has been granted under Rule 4"1 Rule 6 (3) makes it; mandatory that the applica tion under Rule 6 shall be made and verified in Form 'B' which bas been duly prescribed under it. Paragraph 2 of the form which runs as follows presupposes that the firm has been already registered:--

12. "(2) The firm was registered by the Income‑tax Officer for . . . . . in the Province of . . . . . on the . . . . . day of . . . 19 . . . . ., for the assessment for the year ending on the 31st day of March 19 . . . . "

13. It, therefore, admits of no doubt that the grant of a certificate of registration is a condition precedent for an application for renewal of registration by a firm.

14. In the present case, the order granting registration was passed on 6th July 1962. Under the rules, the period prescribed for the application for renewal of registration for the year 1960‑61 ended on 31‑10‑1960 and for the year 1961‑62 on 31‑10‑1961. Both these periods had expired when the application for registration was granted. We have already seen that the renewal application was made on 15‑9‑1962, i.e., 2 months and 9 days after the decision.

15. In these circumstances, the application for renewal for the years 1960‑61 and 1961‑62 could not be made according to the rules before 6‑7‑1962, i.e., the date on which the initial registra tion was granted.

16. The second proviso to Rule 6 (2) lays down that the Income‑tax Officer has the power to entertain an application for renewal of registration made after the expiry of the date specified in It if he is satisfied that the firm was prevented by sufficient cause from making the application within the prescribed time‑limit. It is not possible to imagine a cause more sufficient than the one which appears in the present case and here is no reason why the delay, if any, should not have been condoned.

17. Reference may in this connection be made to the maxim‑

18. "Lex non cogid ad impossibilia" which when rendered into English means " the law does not compel a man to do that which he cannot possibly perform". Sir W. Scott has been quoted by Broom to his classic "The Legal Maxims", 10th Edn., p. 162, as having said‑ "the law itself and the administration of it, with reference to an alleged Infraction of the revenue laws, must yield to them to which everything must bend, to necessity, the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws mast adopt that general exception for the consideration of all particular cases."

19. In Mayer v. Hording ((1967)11 Q B 410) it was hold that‑

20. "Where a statute requires a thing to be done within three days, or six months, or within any particular period, the time may no doubt be circumscribed by the fact of its being impossible to comply with the statute on the last day of the period so fixed . . . . . Here it was impossible for the appellant to lodge his case within three days after he received it . . . . . and though it cannot be con sidered strictly condition precedent where it is Impossible of performance in consequence of the offices of the Court being closed, and there being no one to receive the case. The appellant lodged the case on Wednesday, t. e. he did all that which was practicable for him to do . . . . Here all that was possible was done and I think that is sufficient."

21. Similarly in The Queen v. The Justices of Surrey ((1880) 6 Q B D 100). It was observed that‑

22. "Was he bound at least to enter his appeal 7 Must the term "next session" be construed so as to allow a party aggrieved not merely the number of days requisite for its notices, but in addition reasonable time to determine whether such notice should be given be analogy to the decisions which have held . . . that he ought to have sometime to look about him and determine whether he shall enter his appeal . . . . . We should be prepared, if necessary, In the case of an appeal against an order of removal to adopt the view that reasonable breathing time so to speak, must be allowed to the aggrieved party."

23. The period of 2 months and 9 days which elapsed between the grant of registration and the filing of the applications for renewal of registration was nothing more than a "breathing time". We will, therefore, hold that the assesses was nit guilty of any laches in presenting the application for renewal.

24. We may in passing note that the Government itself realised the necessity of providing for such a contingency by amending the rules in 1962 and inserting Rule 6 (1) (b) in the following words:‑

25. "Such application may also be made where an application referred to in rule 3 has been made but no order under sub-rule (1) or sub‑rule (2) of Rule 5 has been passed up to the date of the first mentioned application."

26. It was, therefore, for the first time in the year 1962 that it became lawfully possible for an assesses to apply for renewal of registra tion of the firm without the order of initial registration having been already passed so long as the application for initial registration had been given.

27. We do not propose to make any order as to costs.

28. K. B. A. Appeal accepted.