Commissioner of Income Tax vs Isher Singh, Contractor

Augustine George Masih, J.—The revenue has filed this appeal u/s 260A of the Income Tax Act, 1961 (for brevity "the Act") against the order of the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar dated 6-12-2006 in ITA No. 589/ASR./2004 for the assessment year 2001-02. The following substantial questions of law are stated to have arisen from the order of the Tribunal for consideration of this Court:

(i) Whether on the facts and circumstances of the case, the order of the Income Tax Appellate Tribunal in dismissing the appeal of the revenue, on account of delay without deciding on merits is sustainable?

(ii) Whether on the facts and circumstances of the case, the Learned Income Tax Appellate Tribunal is right in rejecting the request of the revenue to file an application on condonation of delay due to long administrative procedural hierarchy?

(iii) Whether on the facts and circumstances of the case, the Learned Income Tax Appellate Tribunal is right in dismissing the appeal of the revenue in view of the fact that request was made for filing of application for condonation of delay?

We have heard the Counsel for the revenue and have gone through the impugned order dated 6-12-2006. In our opinion, no substantial question of law arises from the order of the Tribunal.

The facts are that an Appeal was preferred by the revenue against the order of the Commissioner (Appeals), Bathinda, which was filed on 19-11-2004 and was delayed by 38 days. The Registry of the Tribunal vide its letter dated 1 -2-2005 informed the department about the defect in the memo, which was with regard to the delay in filing the appeal as also for furnishing correct copy of the assessment order of the assessing officer, which was not filed along with the memorandum of appeal. The department submitted the correct copy of the assessment order vide letter dated 25-4-2005. No steps were taken to file an application for condonation of delay of 38 days as informed by the Registry of the Tribunal. The appeal came up for hearing on 23-10-2006 when the Tribunal brought it to the notice of the Departmental Representative that the appeal filed was delayed by 38 days. On the request made by the departmental representative, time for filing the application for condonation of delay was granted. The department was directed to submit the said application for condonation of delay on or before 15-11-2006 and the case was fixed for hearing on 6-12-2006. No application for condonation of delay was filed by the revenue within the time stipulated. On 6-12-2006, when the case came up for hearing still no application for condonation of delay had been filed. The Tribunal, in the absence of the application for condonation of delay, had no option but to dismiss the appeal filed by the revenue.

The courts have been taking liberal view on the question of lim Income Tax Appellate Tribunalion where sufficient cause is given so as to advance substantial justice. Generally delays in preferring appeals are condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to the party seeking condonation of delay. This is a case of gross negligence and inaction on the part of the official(s) of the department. The interest of revenue has suffered due to inaction on the part of the official(s) which calls for strict action on the part of the department against the erring officials). The defect in the appeal was brought to the notice of the appellant vide letter dated 1-2-2005 but till 6-12-2006, i.e., more than one year and 10 months, when the case was decided by the Tribunal, no application for condonation of delay was filed.

Sub-section (3) of Section 253 of the Act provides that every appeal under Sub-section (1) or Sub-section (2) of Section 253 of the Act shall be filed within a period of 65 days of the date on which the order sought to be appealed against is communicated to the assessee or the Commissioner as the case may be. The appellate Tribunal under Sub-section (5) of Section 253 of the Act may admit an appeal after the expiry of the relevant period provided it is specified that there was sufficient cause for not presenting the appeal within the time stipulated. Since no application for condonation of delay was filed and there being no reason on record much less sufficient cause for not presenting the appeal within the time stipulated, the Tribunal was left with no option but to dismiss the appeal.

In the light of the above factual matrix, no substantial questions of law arise for consideration of this court as they are pure questions of fact and the decision of the Tribunal is as mandated by the statute.

We find no ground to interfere in the findings of fact given by the Tribunal and there being no substantial questions of law which arise in the present appeal, the same is dismissed.