V. Bhargava, J.
1.The Income-tax Appellate Tribunal has referred the following three questions of law for opinion to this Court.
'1. Whether, the filing of the memorandum of appeal on the prescribed form and in triplicate is mandatory or is mere matter of procedure not affecting limitation?
2. Whether on the facts and circumstances of this case, the appeal to the Tribunal was barred by limitation?
3. Whether the admission of the revised memo, of appeal ex parte after the period of limitation under Rule 13 of the Tribunal Rules amounted to condonation of the delay and such order is not liable to be challenged by the Department at the time of the hearing of the appeal?' ,
The facts, as they appear from the statement of the case, are that an appeal by the assessee was dismissed by the Appellate Assistant Commissioner by his order dated the 7th of May,. 1949, and the copy of that appellate order was served on the assessee on the 11th of May, 1949. A memo of appeal against that order of the Appellate Assistant Commissioner was presented to the Income Tax Appellate Tribunal on the 6th of July, 1949, lint it was found to be defective inasmuch as the memo of appeal was not in the prescribed form and it was not filed in triplicate as required by Rule 10 of the Income Tax Appellate Tribunal Rules.
These defects were pointed out to the assessee at the time of presentation of the appeal and consequently, they were rectified by the assessee by filing a revised memo of appeal in triplicate in proper form on the 22nd of July, 1949. At this time the new forms presented were accompanied by an application praying for admission of the appeal. The Bench of the Income Tax Appellate Tribunal on the application passed an order, 'Admit'.
Thereafter, the appeal came before us for final hearing when an objection was raised by the Income Tax Department that the appeal was barred by time. This plea of the department was accepted by the Tribunal which also held that there was no sufficient cause for condoning the delay. Thereupon the appeal was dismissed. It is on these facts that the three questions, mentioned above, have been referred to this Court for opinion.
2. In this case, we propose to take up question No. 2 first because, on the view, that we aretaking on this question, it may not be necessary to answer questions Nos. 1 and 3 as they will not arise in case the second question is answered in favour of the assessee. On the facts mentioned, above, it Is clear that the memo of appeal was first presented within time on the 6th of July, 1949, as the period of 60 days started running with effect from the 12th of May, 1949. The memo of appeal having been presented, it had to be examined to see whether it wag in order and it was discovered that there were two defects : First the memo of appeal was not in the prescribed form and, secondly it was not accompanied by two other copies, so that there was non-compliance with the provisions of Rule 10 of the Income Tax Appellate Tribunal Rules. Under Rule 13 of those rules, the Tribunal could proceed in two alternative ways. Either the Tribunal could reject the memo of appeal or the Tribunal could return it for being amended within such time as it might have allowed. In the latter case, the memo of appeal, after amendment, could be re-presented, whereupon, according, to Rule 13, it would have been signed and dated by the officer authorised in this behalf by the Tribunal.
In the present case, the Tribunal did not adopt either of these courses laid down in Rule 13. The Tribunal did not choose to reject the memo of appeal, nor did it proceed to return the memo of appeal for being amended after prescribing the time during which it might be re-presented after amendment. What the Tribunal did was to keep that memo of appeal pending and, thereafter permitted the assessee to present the memo of appeal in proper form in triplicate.
On the 22nd of July, 1949, when these fresh memo of appeal in proper form were presented, an order was recorded by the Tribunal signed by both the members of the Bench admitting it. The question whether this order of admission amounted to condonation of the delay in presenting the new memo of appeal is certainly an arguable one and is, in fact, the subject-matter of question No. 5 referred to us. The order of admission recorded by the Tribunal has, however, another implication which has to be kept in view.
By passing this order, the Tribunal accepted the prayer of the assessee to substitute the memo of appeal in proper form for the original memo of appeal which had been presented on the 6th of July, 1949. The order of admission thus had the effect of allowing the memo of appeal presented on the 6th of July, 1949, to be amended so as to conform to the requirements of Rule 10 Such an amendment permitted by the Tribunal would date back to the date of presentation of the original memo of appeal, so that for purposes of computing limitation as well as for all other purposes, it would be deemed that the memo of appeal in proper form and in triplicate had been filed on the 6th of July, 1949.
That an amendment in a memo of appeal dates back to the date of presentation of the memo of appeal has already been held by two High Courts; by the Calcutta High Court in Sheonath Singh v. Commissioner of Income-tax, West Bengal, : 33ITR591(Cal) , and by the High Courtof Patna in Gouri Kumar Devi v. Commissioner of Income-tax, B. and O., : 37ITR220(Patna) . Learned counsel for the department was not able to argue before us any reason for holding that, in the case of a memo of appeal under the Indian Income-tax Act, the principle that a subsequent amendment will' date back to the date of the original presentation of the memo of appeal will not apply.
This is the general principle which applies to amendments of all plaints, written statements and similar documents under the C. P. C. In these circumstances, in the case before us, the memo of appeal, as amended by substitution of the memo of appeal presented on the 22nd of July, 1949, will take effect as if it had been presented on the 6th of July, .1.949, and, on that date, the presentation was within the period of limitation laid down by Section 33 of the Income-tax Act. The appeal was, therefore, not barred by limitation at all and, consequently, our answer to question No. 2 is in the negative.
3. In view of our answer to question No. 2 to the effect that the appeal of the assessee was not barred by limitation, no occasion arises of examining the other two questions as to whether the filing of the memorandum of appeal in, the prescribed form and in triplicate is mandatory or as a mere matter of procedure not affecting limitation or the question whether the admission of the revised memo of appeal ex parte after the period of limitation under Rule 13 of the Tribunal Rules amounted to condonation of delay. Since these two questions do not now arise, we direct that the record be returned to the Tribunal with our opinion that these questions need not be answered in this case. The assessee will be entitled to the costs of this reference which we fix at Rs. 200/- representing fee of learned counsel for the assessee.