1. Two questions arise on this reference, one is the proper period of limitation in the case of an appeal preferred under the Business Profits Tax Act against a decision of the Appellate Assistant Commissioner, and the other question is whether the Appellate Tribunal has jurisdiction to condone delay if the appeal is out of time.
2. Under section 17 of the Business Profits Tax Act it is provided that :
'Any Income-tax Officer or any person in respect of whose business an order under section 12 has been passed and who objects to an order passed by an Appellate Assistant Commissioner of Income-tax under section 15 or section 16 may, within the prescribed time and in the prescribed manner, appeal against such order to the Appellate Tribunal constituted under the Indian Income-tax Act, 1922, and that Tribunal shall have all such powers in disposing of the appeal as it has in respect of appeals preferred to it under the said Act.'
3. Rules have been framed under the Business Profits Tax Act and rule 12 is the material rule and that rule in sub-section (a) provides that an appeal to the Appellate Tribunal under section 17 of the Act against an order of the Appellate Assistant Commissioner of Income-tax under section 15 or section 16 of the Act shall be made at any time before the expiry of sixty days from the date of receipt of the order in question. Then rule 13 provides that the procedure to be followed on an appeal to the Appellate Tribunal under the Act shall be the same, as nearly as may be, as that prescribed in respect of appeals to that Tribunal under the Indian Income-tax Act, 1922. Rule 14 provides that at the hearing of any appeal or application under the Act by the Appellate Tribunal or an Appellate Assistant Commissioner in that behalf, and sub-rule (2) provides that notice of the date appointed for the hearing of any appeal or application under the Act shall also be given to the Income-tax Officer concerned.
4. Now, the facts here are that the Income-tax Officers was served with the order of the Appellate Assistant Commissioner on the 28th of June, 1951. That order was also served on the Commissioner of Income-tax on the 4th of July, 1951. The appeal that was preferred by the Income-tax Officer was out of time if limitation ran from the 28th of June, 1951. The contention of the Commissioner is that limitation runs not from the 28th of June, 1951, But from the 4th of July, 1951. It is clear that under rule 12 limitation runs from the date of the receipt of the order in question, and the receipt can only be by the party aggrieved by the decision of the Appellate Assistant Commissioner. If the party aggrieved is the assessee then this limitation would run from the receipt of the order by the assessee. If the Income-tax Officer is aggrieved then limitation will begin to run from the date of the receipt of the order by the Income-tax Officer. It must be borne in mind that section 17 gives the right of appeal both to the Income-tax Officer and to the assessee; and therefore the appellant when the order is made against the Income-tax Officer is the Income-tax Officer himself. What is relied upon by the Advocate General is rule 14 and he says that right is given to the Commissioner to be represented at the hearing of the appeal, and therefore it is necessary that the Commissioner should also receive the order and limitation should begin to run from the date when the Commissioner receives the order.
5. That contention is obviously untenable. Limitation cannot begin to run from two dates. If limitation once begins to run when the Income-tax Officer received the order on the 28th of June then it is impossible to contend that limitation also began to run from the subsequent date, viz., the 4th of July. In the second place rule 14 gives the right to the Commissioner being represented at the hearing of the appeal arises. Thirdly the appellant is not the Commissioner. The appellant is the Income-tax Officer, and the right that is given to the Commissioner to be represented at the hearing is not as an appellant but as an income-tax authority interested in the decision given by the Appellate Assistant Commissioner.
6. Reference is then made to sub-rule (2) of rule 14 which provides for a notice of the date of the hearing of the appeal being given to the Income-tax Officer concerned, and the Advocate General says that it is really the Income-tax Commissioner who is in the first place entitled to receive the order made by the Appellate Assistant Commissioner, and by reason of sub-rule (2) it is provided that the Income-tax Officer should also be given a notice of the appeal. We do not understand why sub-rule (2) was framed. As the Income-tax Officer is the party before the Appellate Assistant undoubtedly if an appeal is preferred by the assessee a notice of the appeal must be given to the respondent. The only reason why sub-rule (2) seems to have been framed is that the main rule 14 having provided that the Commissioner should have a right to be represented at the hearing lest it should be suggested that a notice to the Commissioner would have been sufficient the legislature seems to have provided, for the sake of caution, that the notice of the hearing of the appeal should also be given to the Income-tax Officer concerned. In our opinion, therefore, it is clear that limitation began to run from the 28th of June when the Income-tax Officer Commissioner and therefore the appeal filed by him to the Appellate Tribunal was barred by limitation.
7. The next question is whether the Appellate Tribunal has jurisdiction to condone delay. In this connection what is relied upon is the provisions of section 17 of the Business Profits Tax Act that the Tribunal shall have all such powers in disposing of the appeals as it has in respect of appeals preferred to it under the said Act; and reliance is placed on section 33 (2A) of the Income-tax Act which confers upon the Appellate Tribunal a power to admit an appeal after the expiry of the period of limitation if it is satisfied that there was sufficient cause for not presenting it within time. It is urged that by reason of section 17 this power which the Appellate Tribunal has under the Income-tax Act has also been conferred upon the Appellate Tribunal are not general powers in reference to an appeal. The powers are limited to those which can be exercised in disposing of an appeal, and the question that we have to consider is what is the exact meaning to be given to the expression used by the legislature 'in disposing of the appeal'.
8. When we turn to sub-section (2A) of section 33 the power of the Appellate Tribunal to admit an appeal after the lapse of the period of limitation is to be found in that sub-section and after an appeal has been admitted the Appellate Tribunal under sub-section (4) of section 33 can dispose of the appeal by passing such-order thereon as it thinks fit. Therefore the stage of the disposal of the appeal only arises after the appeal has been admitted and the powers of the Appellate Tribunal in disposing of the appeal are subsequent to whatever powers it may have in admitting the appeal. Therefore it is only for the purpose of admitting the appeal that sub-section (2A) of section 33 confers upon the Tribunal the power to condone delay. Section 17 does not confer upon the Appellate Tribunal the same powers that the Tribunal has under the Indian Income-tax Act with regard to admitting appeals. The powers it confers are only with regard to disposing of appeals. Once this distinction is clearly borne in mind, it is clear that the Legislature has not conferred any power upon the Appellate Tribunal to condone delay.
9. It may also be pointed out that section 19 applies to the Business Profits Tax Act certain sections of the Indian Income-tax Act which have been made applicable by the Excess Profits Tax Act and when we turn to the Excess Profits Tax Act we find that section 33(2A) is not one of the sections that have been made applicable to the Excess Profits Tax Act, and therefore to the Business Profits Tax Act, and in the rules themselves we find that rule 4A applies certain provisions of the Indian Income-tax Act after adapting them for the purpose of the Business Profit Tax Act and even in this rule we find no reference to section 33(2A). Therefore if the intention of the Legislature was that the Appellate Tribunal should have made a clear provision that the provisions of section 33(2A) should be made applicable to cases arising under the Business Profits Tax Act. As rightly pointed out by Mr. Kolah, the assessee obtains a vested right by the appeal which the Income-tax Officer could have preferred being barred by limitation, and before the Court deprived the assessee of that vested right the Court must be satisfied that there is a clear provision in the law which entitled the appellate authority to condone delay and to deprive the assessee of his vested right. In our opinion there is no such provision and therefore we cannot assume that the Tribunal had the power to condone delay in the case of an appeal which was barred by limitation.
10. We must, therefore, answer the questions raised by limitation. When the order was received by the Income-tax Officer, and (2) in