Delhi High Court
Kamal Jewellers vs Income-Tax Officer. on 22 May, 1995
Equivalent citations: [1995]55ITD451(DELHI)
ORDER
Per B.S. Saluja, J.M. - These appeals have been filed by the assessee against imposition of penalties under section 271(1)(a), section 273(1)(b) and certain additions and disallowances made in the assessment under section 143(3).
2. Appeal No. ITA 1531 (Delhi) 90 and appeal No. ITA 1532 (Delhi) 1990 have been filed late by 266 days. Similarly appeal No. ITA 1533 (Delhi) 90 has been filed late by about 2 years and 8 months approximately. The department has opposed the condensation of delay requested by the assessee.
3. The assessee had made applications on the date of filing of the appeals i.e., 7-3-1990 for condensation of delay and the main reasons given with reference to penalty appeals are that the orders of the learned CIT (Appeals) dated 1-2-1989 were received by the assessee sometime in April, 1989, that the partner of the firm Mr. Kamal Narayan had a heart attack in 1989 and could not attend the filing of the appeals, that the firm closed its business in 1983 and as such the whole burden was on Mr. Kamal Narayan who was sick and confined to bed. The reasons with reference to the late filing of appeal No. 1533 (Del.) 1990 are that the firm closed business in 1983, that the order of appeal dated 15-6-1987 was received by someone else and sent to the Advocate Shri M.L. Khanna who did not file the appeal on wrong thinking or for reasons not explained to the assessee, that there was no default of any kind on the part of the assessee, that Shri Kamal Narayan fell ill in 1989 and had a heart attack, and that on the coming of the Tax Recovery Officer, the said order dated 15-6-1987 was searched from the office of Shri M.L. Khanna and the appeal was filed.
4. The learned counsel for the assessee Shri Raj K. Tandon submitted at the outset that the Tribunal had granted interim stay in these cases vide its order dated 23-5-1990 in stay application No. 28 (Del.) 90 and it is to be deemed that the delay in filing the said appeals has already been condoned by the Tribunal. He further invited our attention to the affidavit filed by Shri Kamal Narayan, partner of the assessee-firm, wherein it has been stated in para 3 that by some oversight, in 1987, orders received remained underused and appeal was not filed by the Advocate for the assessment year 1981-82. It has further been mentioned in paragraphs 4 & 5 of the said affidavit that Shri Kamal Narayan fell ill in 1989 and had a severe heart attack and the appeals against penalty orders under section 271(1)(a) and section 273(1)(b) for the assessment year 1981-82 could not be filed and that when the Tax Recovery Officer came to collect the demand, Shri Kamal Narayan discovered that appeals had not been filed and that thereafter files were collected from the office of the Advocate Shri M.L. Khanna and the appeals were filed. In paragraph 6 of the affidavit Shri Kamal Narayan has prayed for condensation of the delay in filing the appeals. The learned counsel further invited our attention to the order of the Tribunal dated 23-12-1992 in ITA Nos. 4532 & 4533 (Del.) 89 for the assessment years 1981-82 and 1982-83, whereby the Tribunal upheld the orders of the CIT (Appeals) in deleting the penalties levied on the assessee under section 271(1)(c) and dismissed the appeals of the revenue. While deleting the said penalties under section 271(1)(c), the Tribunal had observed in paragraph 10 of its order that "on consideration of the conduct of the assessee right from the inception to the date of revising the income shall go to show the assessees bona fide. Therefore, the revision of income would go to mitigate the default". The learned counsel laid emphasis on the said observations made by the Tribunal.
4.1 The learned counsel made detailed submissions urging the Tribunal to condone the delay in filing of these appeals and take a liberal view in the matter so as to subserve the cause of justice by deciding the appeals on merits. The main arguments of the learned counsel were as follows :-
(i) The Tribunal had heard the stay application and interim stay was granted on 23-5-1990 after hearing both the parties and it is to be deemed that the Tribunal had condoned the delay in filing the appeals, while granting the said interim stay. He further submitted that the Tribunal was aware of the fact that appeals had been filed late and that the Tribunal could not have granted the stay without admitting the appeals;
(ii) the Tribunal had issued notices of hearing of these appeals and the said notices have been served upon the assessee and this fact will also lead to the conclusion that the appeals have been admitted and the delay has been condoned;
(iii) the stay order passed by the Tribunal was an order under section 254 and that the department did not file any application under section 254(2) for rectification of mistake. The department also did not file any reference application under section 256(2) and in the circumstances the stay order became final. In this connection he also relied on rule 35 and rule 35A(1)(a) and 35A(2)(iv) of the ITAT Rules, 1963;
(iv) The Tribunal has no power to review its own orders and that in case the question of condensation of delay is again considered, the same will amount to review of the stay order by the Tribunal;
(v) the assessee does not stand to benefit in any way by filing the appeals late and that a liberal approach be adopted by the Tribunal in condoning the delay so that the cause of justice is advanced and the appeals are heard on merits;
(vi) the words communication of the order as mentioned in column 9 of Form No. 36 mean knowledge of the taxpayer about the appeal order. In this connection he relied on the decision of the Honble Orissa High Court in the case of Nandram Hunatram v. CIT [1959] 37 ITR 500 wherein with reference to service of notice and communication thereof it was held that a pleader was not an authorised agent within the meaning of the Civil Procedure Code for the purposes of service of notice and the counsel appointed to argue the appeal could not be deemed to be an authorised representative to receive orders and that handing over of the order to the Advocate was not sufficient compliance and if the Advocate fails to file an appeal before the Tribunal, the assessee has sufficient cause to apply for condensation of delay under section 5 of the Limitation Act;
(vii) Under Article 227 of the Constitution of India, the High Courts have supervisory role over the Tribunals and that in the High Courts the Registrar receives and admits the appeals and on that analogy once the appeals have been filed and accepted by the Registrar of the Tribunal, the same should be deemed to have been admitted;
(viii) Under Article 141 of the Constitution of India, Law declared by the Honble Supreme Court is binding on all courts, including the Tribunals and that the decision of the Honble Supreme Court in the case of Collector, Land Acquisition v. MST. Katiji [1987] 167 ITR 471 should guide the Tribunal in condoning the delay in filing the present appeals. In this connection the learned counsel also referred to the provisions of Article 144 of the Constitution whereunder all authorities are bound to act in aid of the Supreme Court. He also referred to the provisions of Article 265 of the Constitution, whereunder no tax can be levied and collected without authority of law.
4.2 In support of the above-mentioned arguments, the learned counsel relied on the following decisions, namely :-
(a) Mela Ram & Sons v. CIT [1956] 29 ITR 607 (SC) for the proposition that the Courts should be slow to adopt a construction which deprives the parties of their valuable rights, like, the right to appeal.
(b) Kalekhan Mahammad Hanif v. CIT [1956] 30 ITR 522 (Nag.) for the proposition that where an assessee has instructed that the copy of an order may be sent to him to the care of a certain person, sending the copy not to the assessee but to that person himself is not due service of the order.
(c) Nandram Hunatrams case (supra) for the proposition that date of receipt of the order by the Advocate could not be taken as the starting point for limitation under the IT Act.
(d) MST Katijis case (supra) for the proposition that the legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits and that the expression "sufficient cause" in that section is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice and that justifiably a liberal approach has to be adopted on principle.
(e) CST v. Nawi Hussain [1983] 54 STC 394 (All.) for the proposition that in case of dissolved firm partners may not take any steps despite service and thereby jeopardize the interests of others and in such cases an application under section 5 of the Limitation Act for the condensation of delay should be construed liberally as fair play and justice demand hearing and no-one should be denied this right unless he does not act bona fide.
(f) R.M. Seshadri v. Second Addl. ITO [1954] 25 ITR 400 (Mad.) for the proposition that the Tribunal is not a Court and the levy of fee for preferring an appeal before the Tribunal does not offend Article 14 of the Constitution. On this analogy the learned counsel submitted that having accepted the fees for filing of the present appeals and having heard the stay application, the issue relating to appeals being time barred ceases to exist.
4.3 The learned counsel also invited our attention to the dissolution deed placed at pages 4-5 of the paper book, wherein it is mentioned that the firm was dissolved on 17-3-1982. He further invited our attention to the order dated 14-12-1993 by the Sales-tax Appellate Tribunal in the case of M/s. Mahabir Trading Co., New Delhi, whereby the delay in filing the appeal was condoned and the appeal was admitted and the stay was granted with reference to recovery of taxes. He further submitted that the second notice for recovery of demand dated 5-2-1990 was served on the assessee on 5-3-1990 and the assessee took immediate steps for filing the appeals on 7-3-1990. In view of the foregoing the learned counsel urged that the Tribunal may condone the delay in filing these three appeals and further stressed that the Tribunal has been formed to render quick justice and that the appeals may be decided on merits. He again mentioned that the issue of notice by the Tribunal for hearing the said appeals itself implies condensation of delay.
5. The learned departmental representative Shri D.D. Goel submitted that the main plea of the learned counsel is that stay has been granted in these cases and, therefore, the Tribunal is deemed to have condoned the delay in filing the said appeals. He submitted that there is no deeming provision in the IT Act or the rules made thereunder that once stay is granted by the Tribunal, condensation of delay is deemed to have been made. He submitted that in terms of the provisions of section 253(5), an order is to be made in writing, after hearing both the parties, for admitting an appeal. He further submitted that when stay application is argued, the admissibility of appeal is never discussed and, therefore, the learned counsel is not correct in saying that the Tribunal would have taken the fact of filing the appeals late into consideration while granting the stay. He also submitted that the proceedings relating to grant of stay are separate proceedings and that a stay can even be granted after deciding the quantum appeal. In this connection he also referred to Chaturvedi and Pithisaria, Income-tax Law, 4th edition, Vol. 5, page 5296, wherein the powers of the Tribunal are discussed and it is mentioned that its powers are limited to the subject matter of appeal before it. He submitted that the assessee has taken specific grounds of appeal for condensation of delay in all these appeals, which in themselves are contradictory, and that the Tribunal is required to dispose of the said grounds before the appeals can be heard on merits. He further submitted that no evidence has been filed by the assessee that the assessment orders were received by the Advocate Shri M.L. Khanna and that the assessee was not aware and that the entire fault lied with the said Advocate. He submitted that the assessee has not filed any affidavit from the earlier Advocate Shri M.L. Khanna in this behalf. In the circumstances he submitted that each day of delay has to be explained by the assessee. He further submitted that Shri Kamal Narayan, partner of the firm, had appeared before the learned CIT (Appeals), as is mentioned in the order dated 15-6-1987 relating to quantum appeal and that in the circumstances full blame cannot be thrown on the earlier Advocate Shri M.L. Khanna, as the partner has to be vigilant of the impending order of the CIT (Appeals) and of further follow-up action necessary for filing the appeals. He further submitted that in the said order of CIT (Appeals) dated 15-6-1987, the address given is that of Kamal Jewellers and not that of the Advocate. He further referred to paragraph 2 of the affidavit filed by Shri Kamal Narayan, wherein it is mentioned that there were some penalties and other orders which were all sent to the Advocate Shri M.L. Khanna for action and submitted that it clearly showed that the papers were sent to the Advocate either by Shri Kamal Narayan or somebody known to him. He further referred to exhibit. A placed in the paper book, which is an order of the Tribunal dated 23-12-1992 in ITA Nos. 4532 and 4533 (Del.) 1989 and cross-objection Nos. 24 & 25 (Del.) 90 in the case of the assessee for the assessment years 1981-82 and 1982-83, and submitted that it is clear there from that the assessee had filed cross-appeals in 1989 with reference to penalty order under section 271(1)(c) and the matter was argued by the present learned counsel Shri R.K. Tandon. The learned departmental representative pointed out that in paragraph 4 of the affidavit filed by Shri Kamal Narayan, he is talking about illness in 1989, whereas the aforesaid cross-appeals had been filed before the Tribunal during the same period which only shows that the assessee could have filed these appeals also in 1989. He further submitted that along with the stay application the assessee had field a copy of the notice under section 221(1) dated 12-9-1989, which was received by Shri Kamal Narayan, and a copy of the reply to the said notice dated 12-2-1990 signed by Shri Kamal Narayan, which also pointed out that Shri Kamal Narayan was attending to tax matters in September, 1989 and February, 1990. The learned departmental representative also invited our attention to the application filed by Shri Kamal Narayan under section 154 of the IT Act on 28-11-1989 as also the letter written by Shri Kamal Narayan to the Central Board of Direct Taxes on 11-11-1989 and submitted that the said documents clearly showed that the assessee was attending to Income-tax matters in November, 1989 and that the appeals could have been filed during the said period. The learned departmental representative also mentioned that the notice under section 221(1) dated 12-9-1989 is marked "final notice" and the same had been received by Shri Kamal Narayan and that the notice dated 5-2-1990 is with reference to the penalties and interest and not with reference to quantum. In view of the foregoing, the learned departmental representative emphasised that it was a clear case of sheer negligence on the part of the assessee and its attitude towards tax matters and that there are no genuine reasons given by the assessee explaining the delay in filing the appeals and that all the reasons now being given are an after-thought and that in such circumstances the delay in filing the appeals should not be condoned.
5.1 The learned departmental representative further submitted that there are no specific provisions in the IT Act for granting stay and that the stay is being granted by the Tribunal by virtue of its inherent powers under the Act. He mentioned that for the purpose of getting stay, the assessee has to file information in accordance with Rule 35-A of the Appellate Tribunal Rules, 1963 and the assessee has to indicate in terms of Rule 35-A(2)(iv) the date of filing the appeal before the Tribunal and its number, if known. He submitted that the purpose behind the said provision is to enable the Tribunal to know as to whether the assessee has filed the appeals. The Tribunal while granting the stay normally only see as to whether the assessee has a prima facie case and there is no opinion expressed with reference to the grounds of appeal. In the present case, there are specific grounds of appeal for condensation of delay. He further submitted that there is no finding by the Tribunal in the stay order regarding condensation of delay and that such a finding could only be recorded after giving the respondents a reasonable opportunity of being heard. In support of the above contentions, the learned departmental representative relied on the following case law :-
(a) Gauti Bandhu v. CST [1987] 67 STC 176 (All.) for the proposition that where the appeals are barred by time and the ground was specifically raised before the Tribunal, the Tribunal is supposed to record a finding.
(b) Belpahar Refractories Ltd. v. State of Orissa [1971] 28 STC 720 (Ori.) for the proposition that a delay in filing the appeal before the Sales-tax Tribunal could not be condoned without giving notice to the respondent. In the said case the High Court had held that the view taken by the Tribunal that the delay in filing the appeal could be condoned without giving notice to the respondent is wholly indefensible as it was abhorrent to the principles of natural justice.
(c) J.B. Advani & Co. (P.) Ltd. v. R.D. Shah, CIT [1969] 72 ITR 395 (SC) for the proposition that explanation of delay for the entire period is necessary. In the said case there was a delay of only 1 1/2 months and the Honble Supreme Court held that the application under section 33A of the IT Act, 1922 was completely barren of any explanation for the delay and that delay has also to be properly and satisfactorily explained.
(d) CWT v. Meghji Girdharilal [1989] 177 ITR 294 (MP) for the proposition that where application is time-barred, even Government could not be given preferential treatment where particulars called for were not supplied and no sufficient cause was shown for delay. In the said case the decision of the Honble Supreme Court in the case of Collector, Land Acquisition v. MST Katiji was taken into consideration.
(e) ITO v. Himalaya Drug Co. [1983] 17 ITD 9 (Delhi.), wherein the terms "sufficient cause" and "reasonable cause" were considered and distinguished. In the said case the appeal filed by the ITO in Form No. 36-A instead of the prescribed Form No. 36 was dismissed on the ground that nothing was explained about occurrence of the defect and nor any effort was made to remove the defect later on and no affidavit was filed. Only a letter stating that it was inadvertence and due to sufficient cause was filed, which was treated as totally vague and ambiguous and not amounting to showing of sufficient cause.
(f) Kantilal K. Advani v. Second ITO [1994] 25 ITD 57, wherein the Tribunal, Bombay Bench A, had considered the decision of the Honble Supreme Court in the case of Collector, Land Acquisition v. MST Katiji 167 ITR 471 and had observed that "However, the Supreme court in the aforesaid case regarding condensation of delay has stated that there is no presumption that the delay is occasioned deliberately or on account of culpable negligence. This shows that the Supreme Court would have taken a different view if the delay was caused by culpable negligence. In fact the observation of the Supreme Court that the litigant runs a serious risk suggests that the appeal might be dismissed because of the delay. In the present case, there has been culpable negligence by the assessee as pointed out above.... The Supreme Court decision cannot be understood to mean that just because there is merit in the assessees appeal, any amount of delay, however, negligently caused, must be condoned. That would amount to saying that the Supreme Court has held that the law of Limitation does not apply at all in a case where there is merit in the assessees appeal, however long the delay and however negligent the assessee might have been. That is not so, therefore, the delay cannot be condoned".
(g) Birbal Khan Chand Khan & Party v. ITO [1993] 52 ITD 522, wherein the Tribunal, Jaipur Bench, has also considered the decision of the Honble Supreme Court in the case of MST Katiji, (supra) and observed in paragraphs 10, 16 & 17 as under :-
"10. It is, therefore, necessary for doing justice between the parties that where an authority is vested with the discretion to do an act either way it should exercise such discretion judicially and not arbitrarily. A discretion exercised judicially leads to just decisions, promotes authority of law and establishes rule of law, a discretion exercised arbitrarily leads to miscarriage of justice and causes erosion in the very system of administration of justice. These views we think are fortified by the decision of the Honble Supreme Court as reproduced above."
"16. The cause pleaded should not only be a probable one but it should be real and sufficiently reasonable. It would not be any sort of assertion that would amount to sufficient cause and would justify the condensation of delay. The cause pleaded must fit in the facts and circumstances of the given case and the explanation offered regarding the delay occasioned by such cause should appeal to reasons so as to get judicial approval."
"17. The provisions contained in sub-section (5) of section 253 no doubt sufficiently authorise this Bench to condone the delay in filing the appeals, but we fail to overlook the inordinate delay as that would, we think, amount to exercising the discretion vested in this Bench, in a most arbitrary way. We accordingly, hold that since this appeal was filed with inordinate delay of more than four years and such delay does not stand satisfactorily explained, the appeal has to be dismissed on the ground of limitation."
(h) Mahendra Financial Corpn. v. ITO [1989] 29 ITD 302 for the proposition that a very strong case on merits is not relevant for condensation of delay in filing the appeals.
(i) Smt. Phool Sabharwal v. CIT [1983] 141 ITR 774 (Delhi) for the proposition that a bona fide mistake of the counsel or his clerk can be a ground for the condensation of delay but it must essentially depend on the circumstances of the case.
(j) Raju Ramchandra Bhangde v. CIT [1984] 148 ITR 391 (Bom.) for the proposition that the Tribunal was justified in not condoning the delay where the appeal was filed late by the assessees counsel, who was his father, after a delay of 520 days.
(k) Sital Prasad v. CIT [1991] 187 ITR 135 (All.) for the proposition that the Tribunal was justified in not considering medical certificate sought to be filed after presenting appeal to the Tribunal, which was filed late.
6. In reply, the learned counsel submitted that the cases relied upon by the learned departmental representative are distinguishable on facts and do not apply to the facts of the present case. He further emphasised that the learned departmental representative has not been able to cite even a single case where stay was granted and appeals were dismissed. With reference to the contradictions in the grounds of appeal for condensation of delay, the learned counsel submitted that the grounds had been hurriedly drafted by the junior counsels as the appeals were to be filed quickly. He further submitted that the assessee had honest intentions and was under the impression that the appeals had been filed by the earlier Advocate Shri M.L. Khanna and thus the assessee was in a state of confusion. He further submitted that the assessee may have been slightly negligent but had no mala fide intention and that in the circumstances of the case the appeals may be admitted and heard on merit.
7. We have carefully considered the submissions made by the rival parties and have also carefully gone through the case law relied upon by them. We have also carefully perused the relevant record, including the paper books filed by the learned counsel. It is observed that the learned counsel has heavily relied on his argument that while granting the interim stay on 23rd May, 1990, the Tribunal was aware that the three appeals in question have been filed late and, therefore, it had considered the said facts and condoned the delay in filing the appeals before granting the interim stay. In this connection the learned counsel has pointed out the following portion from paragraph 3 of the stay order :-
"The power of the Tribunal to grant stay arises only in those cases where the Tribunal has appeal powers."
We have also considered the arguments of the learned departmental representative with reference to the stay proceedings and the grant of the said interim stay order, which ultimately got vacated as the learned counsel was unable to fulfill the conditions stipulated in the said interim stay order. We agree with the learned departmental representative that the question of condensation of delay cannot be decided without giving the respondent an opportunity of being heard and that there is no indication in the said stay order that the question of condensation of delay has been considered. We further agree with the learned departmental representative that the stay proceedings are entirely different and arise out of the inherent power vested in the Tribunal under section 254(1) of the I.T. Act and that while granting stay the Tribunal does not examine the grounds of appeal taken in the appeals filed before it but only examine as to whether the assessee has a reasonable case and as to whether the stay on the recovery of demand is justified in the circumstances of the case. In view of the foregoing, we reject the arguments of the learned counsel that the Tribunal had already considered the question of condensation of delay while granting the interim stay. The next argument of the learned counsel is that the stay order was an order under section 254 of the I.T. Act and that the department had not filed any application under section 254(2) for rectification of the mistake or moved any reference application under section 256(1) against the said stay order. We feel that this argument of the learned counsel is too far-fetched and we cannot subscribe to this and in any case the interim stay order dated 23-5-1990 got vacated as the assessee could not fulfill the condition of furnishing bank guarantee to the satisfaction of the ITO and could not report compliance with the said condition to the Tribunal by 22nd June, 1990, as stipulated in the stay order. The next argument of the learned counsel that the mere fact of issuing a notice for hearing by the office of the Tribunal means acceptance of appeals under section 253(5) also cannot be accepted as the notice is given to both the parties for the purpose of making an appearance before the Tribunal and arguing their respective view-points before the Tribunal. Thus this argument of the learned counsel also is rejected.
7.1 The learned counsel has also relied on various case laws, apart from the case law mentioned in paragraph 4.2 with reference to the expression "may" signifying discretionary powers of the Tribunal for admitting appeals under section 253(5) of the I.T. Act. In this connection he has referred to the case Julius v. Bishop of Oxford LR-5 AC 214 as mentioned at page 107 of 1981 edition of Sampath Iyengar - Law of Income-tax, case of L. Dwarka Dass v. ITO [1956] 29 ITR 60 (All.) and case of Gangadas Sarda v. CIT, Bihar, 29 ITR 799. We have gone through the said cases also and we agree with the learned counsel that the discretionary powers vested in the Tribunal under section 253(5) have to be exercised judiciously, which only means that after hearing both the parties and also examining as to whether the assessee has been able to show sufficient cause for not presenting the appeals within the period allowed under section 253(3).
7.2 Now we have to examine the basic issue as to whether the assessee had sufficient cause for not presenting the appeals within the time allowed under section 253(3). It is clear from the orders of the first appellate authority and from the information furnished by the assessee in column 9 of Form No. 36 that the appellate orders with reference to penalties under section 271(1)(a) and section 273(1)(b) of the I.T. Act had been passed on 1-2-1989 and the same were received by the assessee "sometime in April 1989". Similarly the first appellate order in the quantum appeal had been passed by the CIT(A) on 15-6-1987 and the same was received "sometime in 1987". The assessee filed an affidavit dated 16-3-1990 i.e. after presenting the appeals to the Tribunal on 7-3-1990 and after issue of a memorandum regarding defects in filing the appeals. In paragraph 2 of the said affidavit the assessee has submitted that "there were some penalties and other orders which were all sent to our Advocate Mr. M.L. Khanna for action". In paragraph 3 it is further mentioned that "by some oversight, in 1987, the orders received, remained underused and appeal was not filed by the Advocate for assessment year 1981-82". Thereafter in paragraphs 4 & 5, it is stated that Shri Kamal Narayan fell ill and had a severe heart attack and the appeals with reference to penalty orders could not be filed and that when the Recovery Officer came to collect the demand, Shri Kamal Narayan discovered that the appeals were not filed. We feel that on the one hand the assessee is stating in paragraph 2 that some penalty orders and other orders were sent to the Advocate, which only means that they were received by the deponent and sent to the Advocate, on the other hand, the deponent has mentioned that the appeals were not filed by the Advocate and that the orders received remained underused. It is not clear from paragraph 3 as to whether the orders were received by the deponent or by the Advocate. During the course of hearing the learned departmental representative had pointed out that no affidavit had been filed by the assessee from the former Advocate Shri M.L. Khanna and the Tribunal afforded an opportunity to the assessee to file such an affidavit. However, Shri Kamal Narayan informed the Tribunal on 23-3-1995 that the former counsel was not traceable and instead an affidavit of the present learned counsel Shri Raj K. Tandon has been filed, wherein the submissions already made before the Tribunal have been repeated and certain arguments raised. As the said affidavit by the learned counsel has not been filed in compliance with the directions issued by the Tribunal, the same is not taken into account. It is further observed from the certificate issued by St. Stephens Hospital, which is placed at page 7 of the paper book filed by the assessee on 16-3-1995, that Shri Kamal Narayan was admitted in that hospital on 24-8-1989 and was discharged there from on 4-9-1989 and he was advised for further check-up on 16-9-1989. Thus the delay in filing appeal No. ITA 1533 (Del.) 90 against the appellate order dated 15-6-1987 in the case of quantum appeal between July 1987 to August 1989, i.e., before the heart attack, is not properly explained by the assessee. The affidavit dated 16-3-1990 is in the nature of self-serving statement and is also quite vague and cannot be the basis for condoning the said delay, as no other evidence has been brought on record by the assessee to prove sufficient cause for such delay. It is further observed that after discharge from the hospital on 4-9-1989, Shri Kamal Narayan had received the demand notice dated 12-9-1989 and that such notice is marked as "final notice" and Shri Kamal Narayan has also given a reply to such notice on 12-2-1990. Further Shri Kamal Narayan has also moved an application under section 154 and made a representation to the CBDT in November 1989. It is further observed that the assessee had also filed cross-objections against the order of CIT(A)-XII, New Delhi dated 20-4-1989 pertaining to assessment year 1981-82 with reference to penalty proceedings under section 271(1)(c). It is clear from the foregoing facts that Shri Kamal Narayan, partner of the assessee firm, was looking after the income-tax matters of the firm after his discharge from the hospital and that he was in a position to see that the appeals are filed in time. On the facts and in the circumstances of the case we feel that the delay between April 1989 and the day of filing the appeals on 7th March, 1990 (except the period of illness from 24-8-1989 to 4-9-1989) has not been properly explained by the assessee and it has not brought any material on record to show sufficient cause for such delay. When we examine the case law relied upon by both the parties in the light of the above facts, we cannot help but hold that the assessee has not been able to demonstrate sufficient cause to support the condensation of delay except a self-serving affidavit dated 16-3-1990, which is also vague and slightly contradictory. In the circumstances we feel that the case law relied upon by the learned departmental representative weight heavily in favor of the department and the judgment of the Honble Supreme Court in the case of Mst. Katiji (supra), relied upon by the learned counsel, is of no help to the assessee keeping in view the above facts and enormous delay of 266 days each in filing the appeals against the penalty orders and almost 2 1/2 years in filing appeal against the quantum order. Therefore, there is no other alternative than to reject all the three appeals at the threshold.
8. In the result, these appeals are dismissed as out of time.