Calcutta High Court
U.B. Distilleries Ltd. vs Commissioner Of Income-Tax on 28 June, 2004
Equivalent citations: [2004]269ITR558(CAL)
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. Mr. Dutt, on the other day, concluded his arguments hoping that the counter argument would be advanced today and to facilitate them this matter was adjourned. This matter was called on today twice and on the second call matter was taken up for hearing when none appears to advance arguments.
2. This application is directed against an order passed by the Commissioner of Income-tax, West Bengal-IV, Calcutta (hereinafter referred to as "the said Commissioner"), whereby and where under the application under Section 264 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"), has been dismissed on the ground of delay. The learned Commissioner found, while exercising his revisional jurisdiction under the aforesaid section that no sufficient cause having been made out. From the impugned order I find that he was prepared to condone delay for about 15 days only. However, the rest of the time was not excused by him.
3. Mr. Dutt, appearing for the petitioner, contends that there are sufficient grounds for which the delay should have been condoned. The order which was sought to be revised Was passed on August 21, 1989, and against that order an appeal was taken out and the Income-tax Appellate Tribunal decided the appeal against him on August 29, 1997. On December 26, 1997, the application for revision was filed. It appears from the provisions of Section 264 that this kind of application should be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier. In either situation time of one year has expired but there is a proviso attached to the section, to enable the Commissioner to condone delay, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period.
4. Mr. Dutt submits that there is sufficient cause for delay and the learned Commissioner in principle failed to grant relief. He submits that the entire time taken for disposal of the appeal should have been excluded while computing the period of one year and this itself is sufficient cause and such facts are held to be sufficient cause as have been noted by the High Court and the Supreme Court in their judicial pronouncement. He has cited a judgment and order of the learned single judge of this court in the case of Nicco Corporation Ltd. v. CIT [2001] 251 ITR 791. He has also drawn my attention to the judgment of the hon'ble Supreme Court rendered in the case of Collector, Land Acquisition v. Mst. Katiji . He submits, while citing the aforesaid decision, that the Supreme Court observed that if there being any non-deliberate delay on the part of the litigant and when substantial justice and technical considerations are pitted against each other, and further where there is no delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides the delay is normally condoned. To bolster his arguments he has also brought another Supreme Court decision reported in Ram Nath Sao v. Gobardhan Sao, and submits that this court should take note of the observation made in paragraph 11 of the said judgment.
5. According to him when sufficient cause has been shown and there is no reason not to be satisfied with the cause shown, the delay should have been condoned.
6. It appears from the records that the petitioner was bona fide prosecuting before the appellate forum and time taken for disposal of the appeal is a sufficient cause for which the party was prevented from approaching the revisional authority with the instant application because one cannot proceed simultaneously. The learned Commissioner should have understood the aforesaid legal position. He, in fact, tried to convince himself that the petitioner was prevented from approaching but then he refused to grant relief for a period of more than 15 days. I failed to understand his logic for not condoning entire delayed period. In the case of Nicco Corporation Ltd. [2001] 251 ITR 791, this court has condoned the delay in a similar case and held that time taken for prosecuting appeal or other proceedings bona fide constituted sufficient cause. Moreover, the Supreme Court had decided that in a case of non-deliberate delay or no fault on the part of the litigant in approaching the court a liberal view should be taken to condone such delay. Respectfully following the observation of the Supreme Court cited above by Mr. Dutt, I think that in this case there exists sufficient cause. It is true that appreciation of sufficiency or insufficiency of a cause is not really scrutinised by the writ court, but when by the judicial pronouncement a set of facts is held to be a sufficient cause, such identical facts in a subsequent case under the law become of binding force and this ought to have been followed by the authority concerned and if it is not done it can be termed as being improper exercise of jurisdiction. Therefore, I set aside the impugned order and I direct the learned Commissioner being the revisional authority to restore the application for revision on record and to hear out the same on the merits. This shall be done within a period of three months from the date of communication of this order.
7. There will be no order as to costs.
8. Xerox certified copy of this dictated order be made available to the parties, if applied for.