Mushtaq Hussain, J.-1. The applicant was assessed to tax for the charge years 1961-62, 1962-63 and 1963-64. He felt aggrieved and filed appeals, which were disposed of by the Appellate Assistant Commissioner of Income-tax Multan Range, Multan on 30-12-1964. The appellant was summoned to appear before the Appellate Assistant Commissioner on 29-12-1964. He did not appear on that date nor did he apply for adjournment. The appeals were, therefore, decided ex-parte. By this order be dismissed the appeals. A copy of this order was admittedly served on the assessee on 25-1- 1965. He could, therefore, have appealed against it to the Income-tax Appellate Tribunal on 29-3- 1965 i.e. Three days after the period prescribed had elapsed.
2. The appellant submitted before the Tribunal that on receipt of the order of the Appellate Assistant Commissioner instead of filing an appeal to the Tribunal he applied to the Appellate Assistant Commissioner Himself on 27-I-1965 praying that the ex-parte order may be recalled and case be decided on merits after hearing him. This application was dismissed on the following day i.e. 28-1-1965 admittedly on the ground that such an application did not lie under the law.
3. It was consequently argued that Section 14 of the Limitation Act was applicable and the time spent in prosecuting with due diligence the application before the Appellate Assistant Commissioner should be excluded in computing the period of limitation prescribed for the appeal as the aforesaid application had been dismissed for defect of jurisdiction. This was the only ground pressed before us although before the Tribunal another cause for the delay i.e. a brother-in-law of the appellant had been admitted to the Mental Hospital, wherefor, the appellant was not in a position to file the appeal within time, was also urged.
4. The order of the learned Tribunal rejecting the appeal proceeds on the grounds that-
(a) the order rejecting the application for restoration of the appeal having been admittedly passed on 28-1-1965 a letter communicating that information would have in the ordinary course reached the appellant a day or two thereafter. The appellant was, therefore, negligent in not filing the appeal within the prescribed period of limitation which was to expire on 26-3-1965 ;
(b) there being no provision in the Income-tax Act which would induce a belief in any person of ordinary prudence that the Appellate Assistant Commissioner could be moved to restore the appeal dismissed by him ex-parte it could not be said that the appellants had done so bona-fide and in any case ignorance of law is no excuse.
5. The effect of Section 14, if applicable, is that the time during which a person has been prosecuting with due diligence another proceeding before a Tribunal which from defect of jurisdiction is unable to entertain it shall be excluded in computing the period of limitation prescribed for an appeal. The result of the application of this proviso to the present case would be that the three days spent by the appellant in prosecuting the application for setting aside the ex- parte order before the Appellate Assistant Commissioner ..Himself would be excluded from the period of sixty days available to him for filing the appeal. .
6. The fact that these three days were spent towards the very beginning of this period of limitation or that there was enough time to have filed the appeal after the rejection of the application could not be taken into account by the Appellate Tribunal as a factor against the appellant.
7, . The effect of Section 14 is neither to entitle the appellant concerned to a condonation of any delay nor does it prescribe circumstances justifying such condonation, this section gives a mandate for the exclusion of the period mentioned in it from computation of the period of limitation- If Section 14 is, therefore, applicable, the factors taken into consideration by the learned tribunal and referred to in sub-para (a) above could not have been looked into at all.
8. Learned counsel for the Commissioner raised a new submission before us, which had not been agitated before the Tribunal and which is to the effect that the provisions of Section 14 are not attracted to income-tax proceedings at all. We are under no duty to permit the raising of this- point for the first time before this Court. We, however, have no doubt in our mind that Section 14 is attracted to these proceedings. Section 29 of the Limitation Act as enacted in 1908 reproduced the provisions of Section $ of the Limitation Act of 1877 and ran as follows- "When by any special or local law now or hereafter inforce in British India a period of limitation is specially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed."
9. This Section became the subject of controversy and divergent decisions by various Courts. To set this controversy at rest this Section 29 of the Limitation Act was amended in the year 1922 by the Indian Limitation (Amendment) Act X of 1922 to read as follows- "29 (1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872.
(2) Where any special or local law prescribes for any suit, appeal or application a period of Limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law ; and (A) the remaining provisions of this Act shall not apply."
10. The effect of this amendment was that while the provisions of Section 5 of the Limitation Act would not be applicable of their own force unless they are made applicable "by or under any enactment for the time being in force", Sections 4, 9 to 18 and 22 would not suffer from this B inhibition. In the language of the section itself, therefore, for the purpose1 of determining any period of limitation prescribed for any appeal the provisions contained in section 14 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law.
11. While, therefore, the submission of the Learned counsel for the Commissioner of Income-tax that only provisions in the nature of Section 5 of the Limitation Act have been included in Section 30(2) of the Income-tax Act is correct the fact remains that there was no need to make the provisions of Section 14 of the Limitation Act applicable by force of some provisions in the Income-tax Act referred to above. We are, therefore of the considered opinion that section 14 of the Limitation Act is applicable to the proceedings before the Income-tax Authorities.
12. We may in this connection advert to a decision of this Court in Muhammad A slam Mirza vs. Mst.
Khurshid Begum (PLD 1972 Lah. 603) where by a majority it was held that although there was no provision in the West Pakistan Urban Rent Restriction Ordinance empowering a Rent Controller from setting aside an ex-parte order passed by him "a Rent Controller can set aside an ex-parte order where the tenant shows that he was precluded from attending on the relevant date of bearing on account of a sufficient cause". We are not giving our considered view on the question whether an Income-tax Officer does or does not have the power to set aside an ex-parte order in the circumstances mentioned in the decision of this Court quoted above, but we are citing this cause only to point out that the Income-tax Appellate Tribunal's conclusion that wherever the power to set aside an ex-parte order can not be called out from the Act itself a person of ordinary prudence could not be induced to believe that such power does not inhere in the Tribunal concerned or that it points to absence of good faith in the person, who prosecuted such an application.
13. For these reasons we would answer the question in the negative and would hold that in the circumstances of this case there was in fact no delay in the presentation of the appeal to the Tribunal and that the same shall now be disposed of by it on merits.