Nihalkaran vs Commissioner of Wealth Tax

G.G. Sohani, Actg. C.J.

This is an application u/s 27(3) of the Wealth-tax Act, 1957 (hereinafter referred to as "the Act").

The material facts giving rise to this application briefly are as follows : The assessments of the assessee under the Act for the assessment years 1957-58 to 1974-75 were completed on March 27, 1979. Aggrieved by that order, the assessee preferred appeals before the Commissioner of Wealth-tax (Appeals) who held that the orders of assessment were passed in haste and that in the absence of essential data, it was not possible for him to decide the points raised in the appeals. In this view of the matter, the Commissioner of Wealth-tax (Appeals) set aside the orders of assessment and directed the Wealth-tax Officer to make fresh assessments in accordance with the law and in the light of the directions contained in his order. Aggrieved by the order passed by the Commissioner of Wealth-tax (Appeals), the assessee preferred appeals before the Tribunal. It was urged on behalf of the assessee before the Tribunal that the Commissioner of Wealth-tax (Appeals) had no jurisdiction to remand the cases. The Tribunal rejected that contention. Aggrieved by the order "passed by the Tribunal, the assessee sought a reference, but as the application made by the assessee in that behalf was rejected, the assessee has filed this application.

The assessee has also filed an application u/s 5 of the Limitation Act for condoning the delay as the application filed by the assessee u/s 27(3) of the Act is barred by 90 days. When the question of condonation of delay came up for consideration before a Division Bench of this court, that Bench referred to the Full Bench the question whether the provisions of Section 5 of the Limitation Act were applicable to an application u/s 27(3) of the Wealth-tax Act. The Full Bench held in Nihalkaran Vs. Commissioner of Wealth-tax, , that the provisions of Section 5 of the Limitation Act were applicable to an application u/s 27(3) of the Wealth-tax Act. After the opinion of the Full Bench was received, the matter has now come up before us for consideration.

The first question that arises for consideration is whether the applicant has made out a case for condonation of the delay. Now, the only ground urged in support of the application u/s 5 of the Limitation Act was that the clerk of the applicant had taken the case papers to the office of the counsel but those papers "got mixed up in the disposed of files". In support of this ground, an affidavit has been filed by the clerk of the applicant. The relevant portion of that affidavit is as follows :

"That I obtained the case papers from R. D. Joshi and Co. for being taken to counsel and accordingly had taken the same to the counsel''s office. However, the file got mixed up in the ''disposed of'' files. This reference should have been filed by July 11, 1984, but when on or about July 1, the papers were sought, the file could not be traced in spite of diligent search in the office of the applicant and also counsel. It was located only on or about October 8, 1984, when the disposed of files were inspected for the record of another case in which an execution had to be filed.".

The aforesaid affidavit does not disclose whether the papers were handed over by the clerk of the applicant to the counsel. The counsel has not filed any affidavit. The affidavit of the applicant''s clerk does not also disclose what steps were being taken by the applicant for filing an application u/s 27(3) of the Act, from July 11, when the application should have been filed, till October 8, when the papers are alleged to have been located. The burden is on the party claiming condonation of delay to place before the court, in clear and explicit terms, all facts on which the party relies, so that the court can come to the conclusion that it is not a case of want of diligence or inaction on the part of the applicant. In the instant case, the applicant has failed to place on record all these facts. Inaction or want of diligence on the part of the applicant would not entitle the applicant to the benefit of the provisions of Section 5 of the Limitation Act. In our opinion, therefore, the applicant has failed to make out a case that there was sufficient cause for delay in filing the application u/s 27(3) of the Act. The application for condonation of delay is accordingly rejected. As the application u/s 27(3) of the Act is barred by limitation, it deserves to be rejected on this ground alone.

Consequently, the application fails and is accordingly dismissed. In the circumstances of the case, parties shall bear their own costs of this reference.