ORIENT ROADWAYS vs COMMISSIONER OF INCOME TAX

R.C. Lahoti, J.

By this petition u/s 256(2) of the Income Tax Act, 1961 the assessee-petitioner seeks a mandamus to the Tribunal for drawing up a statement of case and referring the following question of law for the opinion of the High Court:

"Whether on the facts and in the circumstances of the case and in law on a correct interpretation of the decision in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, the Tribunal was right in not condoning the delay and dismissing the appeal in limine?"

For the assessment year 1982-83, the assessed feeling aggrieved by the order of assessment dated 14-3-1985 preferred an appeal before Commissioner(Appeals) which was dismissed as barred by time, by order dated 9-10-1985. The order was communicated to the assessed on 6-11-1985. The assessed preferred an appeal to the ITAT on 2-2-1993. The appeal was barred by time by seven years and three months. The assessed moved an application u/s 5 of the Limitation Act seeking condensation of delay in filing the appeal. The application has been dismissed and consequently the appeal too. The Tribunal has held that the assessed was a partnership firm. The continued ailment of one of the partners of the firm was set up as a ground for condensation of delay in filing the appeal. The assessed had legal assistance available to him. There were other partners and employees of the firm who could have taken care of filing the appeal even in the absence of one of the partners. Taking into consideration all these facts the Tribunal arrived at a finding that the delay in filing the appeal was not bona fide and hence was not liable to be condoned. Before the Tribunal the assessed had placed reliance on the law laid down by the Supreme Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, which has been distinguished by the Tribunal and held not applicable to the facts of the case.

At the time of hearing before us, the learned Counsel for the assessee-petitioner referred to two more decisions of the Supreme Court namely State of Haryana Vs. Chandra Mani and others, and P.K. Ramachandran Vs. State of Kerala and Another, .

Having heard the learned Counsel for the parties, we are satisfied that no referable question of law arises from the order of the Tribunal and no fault can be found with the view taken by the Tribunal in rejecting the petitioners application u/s 256(1). Whether or not there was a sufficient cause within the meaning of section 5 of the Limitation Act for condoning the delay in filing the appeal is basically a question of fact. The Tribunal has kept the law laid down by the Supreme Court in its view and then found that the benefit thereof was not available to the assessee-petitioner in the facts and circumstances of the case. It is well settled that the Tribunal is final fact finding authority and a finding of fact recorded by the Tribunal cannot be said to giving rise to a question of law worth being answered by the High Court.

The application u/s 256(2) of the Act is, Therefore, held liable to be dismissed and is dismissed accordingly.

Application dismissed.