1. The question under reference is whether, on the facts and in the circumstances of the case, the appeals were rightly dismissed as barred by time. A common order was made by the Appellate Assistant Commissioner in respect of the assessment years 1959-60 and 1960-61. The last date for filing the appeals was December 14, 1962. On that date only one appeal was filed. The Tribunal apparently treated it as for 1959-60, but returned it on the view that it should be on the old form of appeal and also requested the Income-tax Officer concerned to file a separate appeal for the assessment year 1960-61. The Income-tax Officer complied with the request on December 18, 1962, for the assessment year 1960-61. The appeal was received on December 21, 1962. As this appeal also was in the new form, the attention of the Income-tax Officer was once again drawn and he was asked to file it in the old form. Finally, on January 7, 1963, two appeals in the old form were sent up to the Tribunal which received them on January 10, 1963. The appeals were kept pending for nearly a year; and they were ultimately disposed of as barred by limitation, the Tribunal observing that there was no satisfactory reason adduced for condoning the delay.
2. We are of opinion that the view of the Tribunal cannot be sustained. So far as the first of the two years is concerned, though the appeal was presented in the new form, we find that substantially there is no difference between it and the old form. The only difference, if at all, appears to be that the new form requires some more information than the old form. The appeal presented for the first year in the new form did contain all the particulars required to be given as in the old form. There was, therefore, no reason for return of the appeal or for not admitting it as in time.
3. As for the other appeal, the circumstances of the case show that there was no negligence on the part of the department. Apparently the Income-tax Officer seeing that it was a common order made by the Appellate Assistant Commissioner took it for granted that one appeal would do. When the defect was brought to the notice of the Income-tax Officer, he quickly acted and responded. Apart from that, when an appeal is presented to the Tribunal, which is defective in some particular, Rule 13 of the Appellate Tribunal Rules, 1946, says that if the appeal is not in the prescribed form it should either reject the memorandum of appeal or return it for being amended within such time as it may allow. In the instant case,the Tribunal neither rejected the appeal nor while returning for amendment prescribed the time within which the re-presentation should be made. In one sense, when no time is prescribed by the Tribunal for re-presentation, the party affected may perhaps be justified in assuming that re-presentation could be made within a reasonable time. Quite apart from that, as we. already indicated, we are in the circumstances of this case satisfied that there was sufficient cause for the delay, which the Tribunal could well have taken note of. The Tribunal instead of appreciating the facts felt content by merely saying that there were no reasons at all for the delay.
4. There is another matter on which there was some little debate before us. It relates to the procedure to be followed by the Tribunal in view of Section 33(2A). Whether, where an appeal is presented out of time, the question of condonation should be heard and disposed of by a petition after notice of the same to the other side or eventually in the appeal itself is a matter to be decided with reference to the language of Section 33(2A). On the facts of this case and having reference to the particular frame of the question referred to us, we do not propose to decide that question.
5. We answer the question in favour of the revenue but with no costs. It is obvious that the effect is that the Tribunal will have to take the appeals as having been admitted and proceed to dispose of them in accordance with law.