Asstt. Commissioner of Income Tax, Circle 3(1), Kanpur vs Lakhan Lal Gupta

Heard Shri A.N. Mahajan, learned Standing Counsel appearing for the Revenue. No one has put in appearance on behalf of respondent assessee, despite service having been effected as per the affidavit of service dated 30th March, 2000. The revenue has filed this appeal u/s 260A of the income tax Act, 1961 against the order dated 26th July, 1999 passed by the income tax Appellate Tribunal (B Bench), Allahabad, whereby the appeal of the revenue against the order of the Commissioner of income tax Appeal-I, Kanpur dated 18-9-1992 has been dismissed in limine on the ground that no application for delay was filed.

The appeal of the revenue was dismissed by the Tribunal only on account of a minor delay of five days and as the revenue had failed to file an application for condoning the delay of five days. It is true that where no application for condonation of delay has been filed, the Tribunal would not have any option but to dismiss the appeal. However, if the Tribunal had afforded an opportunity to the revenue to file an application for condonation of delay, despite the said opportunity, the revenue had failed to file the application, then the order dismissing the appeal would have been in order.

We find from the impugned order of the Tribunal that no such opportunity was afforded, and therefore, we are inclined to set aside the order of the Tribunal and remit the matter back with the liberty to the revenue to file an application for condonation of delay of five days. Our view is strengthened by the decision of the Apex Court in the case of Udai Bhan Gupta Vs. Hari Shankar Bansal and Others, , where the Apex Court set aside the order of the High Court and permitted the appellant to file an application for seeking condonation of delay and such application to be disposed of by the High Court in accordance with law.

Respectfully following the decision of the Apex Court in the case of Udaybhan Gupta (supra), we allow this appeal, set aside the impugned order of the Tribunal dated 26th July, 1999 and at the same time we grant liberty to the revenue to file application for condonation of delay in filing the appeal supported by an affidavit explaining the reason for the delay of five days. The appeal is allowed as above. However, there shall be no order as to Costs.