Ganga Sahai Ram Swarup and Another vs Income Tax Appellate Tribunal and Others

Heard Shri Ravi Agrawal, learned counsel for the appellants and Shri Shambhu Chopra, learned standing counsel for the respondents.

The appeal had been admitted by this court on the following substantial questions of law :

"Whether non-condonation of delay by the Commissioner of Income Tax (Appeals) was arbitrary and against the settled principles ?"

From the order of the appellate authority, it appears that an assessment was framed against the appellant u/s 144/245 by the Income Tax Officer, Ward No. 2, Hapur, vide order dated September 12, 2000. The appeal u/s 246 of the Income Tax Act, 1961, is to be preferred within 30 days of the date of the order which in the present case was to be filed up to October 15, 2000. The appeal was actually filed on October 27, 2000, i.e., after a delay of 12 days. The appellant had filed an application u/s 5 of the Limitation Act supported by an affidavit for condonation of delay. The ground taken was that the appellant had handed over the papers to its counsel, Shri R. K. Sachdeva at Meerut, however, the appeal was not prepared and filed within the time. The Commissioner of Income Tax (Appeals) vide order dated December 13, 2000, declined to condone the delay and consequently dismissed the appeal. The challenge of the order passed by the Commissioner of Income Tax (Appeals) remained unsuccessful before the Income Tax Appellate Tribunal. Learned counsel for the appellant submitted that there was a short delay of only 12 days in filing the appeal and the appellant was not going to gain anything by delaying the filing of the appeal. He further submitted that the appellant was bona fide pursuing his remedy and in fact had handed over the papers to his counsel, Shri Sachdeva, who for some reasons had not prepared and filed the appeal within time and, therefore, a liberal view ought to have been taken by the authorities and the delay should have been condoned.

It is not in dispute that there was only a delay of 12 days in filing the appeal. As held by the hon''ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , a liberal view ought to have been taken by the authority as the delay was only of a very short period and the appellant was not going to gain anything from it.

In this view of the matter, the order passed by the Commissioner of Income Tax (Appeals) and the Tribunal are set aside. The Commissioner of Income Tax (Appeals) ought to have condoned the delay in filing the appeal. The matter is remanded to the Commissioner of Income Tax (Appeals) to pass appropriate orders on the application for condonation of delay in the light of the observations made above and to decide the appeal on the merits in accordance with law expeditiously preferably within a period of three months.

The appeal is allowed. However, there shall be no order as to costs.