(Judgment of the Court was delivered by the Honourable the Chief Justice).
The Income-tax Appellate Tribunal, Calcutta, has referred to this court under Section 66 (1) of the Income-tax Act the Following questions :-
' (1) Whether the appeal is liable to be rejected as barred by limitation in the circumstances of the case.
(2) Whether the assessee is entitled t a refund of the deposit of Rs. 100 when the appeal is rejected not on the merits but on the ground of limitation.'
The reference discloses a surprising situation, but fortunately it is not likely to arise again. The assessee desired to appeal to the Tribunal against an order of the Appellate Assistant Commissioner, dated the 24the November, 1940. When this order was passed the Income-tax Appellate Tribunal had been constituted, but the assessee did not know, and had not the means of knowing, that the office of the Tribunal was to be opened in New Delhi. Section 33 of the Act, as now amended requires, that an appeal to the Appellate Tribunal shall be presented within sixty days from the date on which the appellant was served with the notice of the order. No rules had been framed regulating the procedure to be followed and were not in fact notified until the 1st February 1941. The assessee lives in a village in the Ramnad District and any notification published in the Gazette of India could not reach him for a week after the publication because of the great distance between Delhi and the place where the assessee is carrying on business. Rule 14 provides that an appeal to the Tribunal shall be presented in person or by a representative to the Registrar at New Delhi or some other officer authorised in this behalf by the Registrar. A proviso follows to the effect that an appeal which is received in the office of the Registar at by post within the prescribed period of limitation shall be deemed to have been validly presented. According to the order of the Appellate Tribunal which has given rise to this reference forms indicating the location of the office of the Tribunal were published on the 25th January, 1941, but they were also published in New Delhi, and therefore were not available here when the appellant filed his appeal.
Having no information with regard to the procedure which he was to follow, he did what a sensible man would do in the circumstances. He drafted his petition of appeal and posted it to the office of the commissioner of Income-tax, Madras, with the request that it should be forwarded to the Tribunal. Before the Act was amended any order passed by the Appellate Assistant Commissioner could only be challenged before the Commissioner and obviously he was the proper person to address. The petition of appeal was received by the Commissioner to the Appellate Tribunal three days later, which was still in time. The period of sixty days expired on the 2nd of February, but this was a Sunday and therefore the period was extended to the 3rd February. The petition was received in the office of the Tribunal on the 10th February, which in itself gives an indication of the time taken tin the post.
Surprising though it be in the circumstances, the Income-tax auhorities opposed consideration of the appeal on its merits, on the ground that it had been filed out of time and they succeeded in persuading the Tribunal to accept this contention. The Tribunal expressed the opinion that the assessee had constituted the Commissioner his agent for presenting the appeal to the Tribunal. We cannot accept this statement as correctly representing the position. The appellant sent his petition of appeal to the only Income-tax Office open to him so far as was known in this Presidency.
In its order the Tribunal goes on to say :
'It is unfortunate that the appellant did not know with whom the appeal had to be filled, had to filed, but this cannot be said to have the effect of enlarging the provisions of the section by reading into more than has been provided.'
It is not a question of the enlargement of the period of limitation. The appeal was filed within the sixty days in the only office which was then open to the appellant, and the appeal should have been heard on its merits. To hold that the appellant is not entitled to have his appeal heard in these circumstances would mean a gross injustice. The first question will be anwered in the negative.
In view of our answer to the first question the assessees appeal will now he heard. Therefore the second question does not really arise. We may add, however, that there is nothing, as far as we can see, in the Act, which would entitle him to the refund of the deposit if the plea of limitation raised by the Income-tax authorities were sound, The second question will be anwered in that sense.
As the appellant has succeeded on the main issue, he will have his costs, Rs. 252.
Reference answered accordingly.