Madras High Court
Prasad Productions (P) Ltd. vs Income Tax Appellate Tribunal And Ors. on 23 November, 1995
Equivalent citations: [1997]226ITR778(MAD)
JUDGMENT K.A. Swami, C.J.
1. This appeal is preferred against the order dt. 27th February, 1995, passed by the learned single Judge in WP No. 1387 of 1995.
2. In the writ petition, the petitioner sought for quashing the order dt. 6th October, 1994, passed by the first respondent in MP No. 30 of 1994 filed in ITA No. 1224/Mad of 1989. The learned single Judge has rejected the writ petition on the ground that the petitioner did not explain the delay in filing the appeal, as the appeal was filed six days beyond the period of limitation. The said appeal ought to have been filed on 1st April, 1989, whereas it was filed on 7th April, 1989. Thus, there was a delay of six days in filing the appeal. There was no explanation either in the memorandum of appeal nor any statement was filed explaining the said delay of six days in filing the appeal. Thus no statement or affidavit was filed along with a memo, showing sufficient cause for the said delay of six days in filing the appeal. Therefore, the Tribunal, immediately issued a defect memo on 8th May, 1994, to rectify the defect. Even thereafter, the appellant did not file any statement or affidavit explaining the delay. The appeal was fixed for hearing on more than one occasion and even then, the appellant did not file any statement or affidavit, explaining or showing sufficient cause for the delay in filing the appeal. Finally, the appeal was posted for hearing on 1st June, 1994. On that day, the assessee's counsel appeared and presented the insufficiently stamped vakalat but he did not file any petition or affidavit or statement for the condonation of delay. Earlier to that on 28th April, 1994, when the matter was posted, learned counsel appearing for the assessee appeared and took time. Even then there was no application or statement filed by the appellant for condonation of the delay and, ultimately, the appeal was heard and dismissed on 3rd June, 1994, by the Tribunal, on the ground that the delay had not been explained. Thus the appeal was dismissed as barred by time. After the dismissal of the appeal, only on 12th July, 1994, the appellant filed a miscellaneous petition (MP No. 30 of 1994) along with an affidavit in support of it for rectification of the alleged defect in the order of the Tribunal dt. 3rd June, 1994, under s. 254 of the IT Act. As the order of the Tribunal did not suffer from any error apparent on the face of the record, in the light of the aforesaid undisputed facts, the Tribunal rejected the said miscellaneous petition by the order dt. 6th October, 1994. The learned single Judge has also held that in the absence of any explanation, the Tribunal was justified in rejecting the appeal as the order of the Tribunal dt. 3rd June, 1994, did not suffer from any error apparent on the face of the record.
3. We issued a notice to learned senior standing counsel for the Department only to find out as to whether the appeal filed by the appellant before the Tribunal could be heard on the merits, in view of the fact that the appellant had paid the taxes. In the light of the aforesaid facts, learned senior standing counsel submitted that once the appeal had been rejected as barred by time, there was no justification nor was it permissible for the Tribunal to entertain any application to rectify the order, which did not suffer from any error apparent on the face of the record. We are of the view that the submission made by learned senior standing counsel for the Department is quite in conformity with the provisions contained in s. 254 of the IT Act. Therefore, we see no reason to interfere with the order of the learned single Judge. Consequently, the appeal is rejected. CMP No. 8450 of 1995 is also rejected.