Gauhati High Court
Assistant Commissioner Of Income Tax vs Tusnial Trading Co. on 29 October, 1997
Equivalent citations: (1998)61TTJ(GAU)700
ORDER
S.R. Chauhan, J.M. This appeal by revenue for assessment year 1984-85 is directed against the order of the Commissioner (Appeals), Gauhati dated 10-11-1998 whereby he deleted the disallowance of Rs. 75,868 made by assessing officer under section 43B.
2. We have heard the arguments of both sides and also perused the records.
3. Before proceeding on merits, we first take the matter to delay. This appeal by revenue has been filed with a delay of 804 days. The revenue has filed a petition for condonation of the delay. It has been mentioned in the petition that the copy of the appellate order was received on 27-12-1988 whereafter application for certified copy was made on 24-2-1989 which was not received up to the date of filing of appeal, and so the appeal has been filed without a certified copy. The learned Departmental Representative has contended that the reason for late filing of appeal is non-receipt of certified copy and so in fact there is no delay. He has also filed a photostat copy of written argument along with a copy of - ITO v. Meghalaya Bonded Warehouse (1997) 60 ITD 219 (Gau) and of decision of ITAT., Gauhati, in ITO v. Kedia & Co. (IT Appeal No. 539 (Gauhati) of 1990 dated 27-9- 1995). As against this the learned Authorised Representative has opposed the condonation petition and contended that there are several decisions of Tribunal refusing to condone delay. He has filed copies of three decisions of Gauhati Tribunal in Asstt. CIT v. Hanuman Pharmaceuticals [CIT Appeal No. 676 (Gauhati) of 1991 dated 19-8-1997], ITO v. Satyanarayan Jiwaram [IT Appeal Nos. 50 and 51 (Gauhati) of 1991 dated 29-9-1995] and [ITO v. Deepak Cottage Industries (IT Appeal No. 819 (Gauhati) of 1990 dated 28- 9-1995].
4. We have considered the rival contentions as also the materials placed on record including the learned Departmental Representative's written submission. The decision referred to in the learned Departmental Representative's written submission along with those of which learned Departmental Representative has filed copies are the following :
1. State of Assam v. Anil Chandra Das (1990) 1 G.L.R. 183.
2. ITA No. 117/Gau./91
3. ITA No. 118/Gau./91
4. Mela Ram & Sons v. CIT (1956) 29 ITR 607 (SC).
5. Sardarmal Khumchand v. CIT (1963) 49 ITR 961 (Assam)
6. S. Sundaram Pillai v. V.R. Pattabiraman AIR 1985 SC 582
7. CIT v. Babu Ram Chandra Bhan (1969) 74 ITR 143 (All.)
8. Rasipuram Union Motor Service Ltd. v. CIT (1958) 30 ITR 687 (Mad)
9. Dinabandhu Sahu v. Jadumari Mangaraj AIR 1954 SC 411
10. Mohanlal Chedilal v. CST (1986) 62 STC 264 (All.)
11. CIT v. Anil Kumar Roy Chowdhury (1967) 66 ITR 367 (SC)
12. Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (1979) 118 ITR 326 (SC)
13. Sevantilal Maneklal Sheth v. CIT (1968) 68 ITR 503 (SC)
14. CIT v. Yuvraj Amrinder Singh (1985) 156 ITR 525 (SC)
15. CIT v. National Taj Traders (1980) 121 ITR 535 (SC)
16. Kedia & Co.'s case (supra).
17. Meghalaya Bonded Warehouse's case (supra).
In the learned Departmental Representative's written submission the citations mentioned above at Serial Nos. 1 to 3 have been referred to and distinguished as not being applicable in the present case. However, in the present case the aforesaid three citations have neither been argued by the learned Authorised Representative of assessee, nor referred to by him during arguments. As such filing of a written argument by mentioning the above three decisions and their entering upon a discussion of the same so as to show that these are distinguishable and as such not applicable in the present case appears to be quite unnecessary and uncalled for.
5. The learned Departmental Representative's written submission, broadly speaking, raises the following contentions:
Exclusion of time taken in obtaining certified copy.
Explanation to rule 9(1) is an enabling provision.
Rules cannot override the provisions of Income Tax Act.
Tribunal has jurisdiction to condone delay for sufficient cause.
Authority to decide filing of second appeal is Commissioner and Income Tax Officer.
Right of appeal is a substantial right and so no negligence or deliberate inaction on the part of assessing officer.
Appellant has a right to obtain a certified copy of the appellate order.
Rule of interpretation should be to prevent mischief and such constraint as would render the Act or rule nugatory.
We first take up the contentions raised above at serial Nos. (i) & (vii) and the decisions mentioned above at serial Nos. 5,7,8 & 12 which pertain to these. The appellant does, undeniably, have a right to obtain the certified copy of the order appealed against, and there can, legally, be no dispute about it. But that right does not, by itself, entitle the appellant to file an appeal with delay. The right to appeal, in this respect, is provided in section 253(2) and the period of limitation for filing the said appeal is provided in section 253(3) and it is a prescribed period of 60 days from the date of communication of the order appealed against. Therefore, the appeal has but to be filed within the prescribed period of limitation. Section 268, no doubt, provides that the time requisite for obtaining a copy of the order appealed against shall be excluded in computing the period of limitation prescribed for an appeal, but the said provision contains a clog for its applicability. There is a pre-condition that the assessee was not furnished with a copy of the order when the notice of the order was served on him and it is only on the fulfilment of this pre-condition that the time requisite for obtaining a copy of such order shall be excluded. In the present case this condition is not satisfied inasmuch as it is not the case that the notice of appellate order was served without a copy of the said order. Section 268 does not speak of the certified copy. As such in the facts and circumstances of the present case the question of the time taken for obtaining a certified copy being excluded in computing the period of limitation does not arise. We may further note, though incidentally only, that this appeal by revenue has been filed with a xerox copy of the order authenticated by Assistant Commissioner and not with a certified copy duly obtained from Commissioner (Appeals) and so even otherwise the very argument of learned Departmental Representative has no factual legs to stand upon. In the written submission of the learned Departmental Representative the decisions mentioned above at serial Nos. 5,7,8 & 12 have been referred to as relevant to the issue. In Sardarmal Khumchand's case (supra) it was a matter of reference application regarding which the applicability of section 67A of the Income Tax Act, 1922 was involved for the purpose of considering the condonation of delay. The said section 67A is as under :
"67A - In computing the period of limitation prescribed for an appeal under this Act or for an application under section 66, the day on which the order complained of was made and the time requisite for obtaining a copy of such order, shall be excluded."
The Hon'ble Assam High Court held that the language of section 67A is very wide even to cover the cases where the copy of the order is not required to be filed along with the application. As such section 67A was held applicable in respect of R.A. also and accordingly, it was held that the time requisite for obtaining copy of such order was excludible. But the language of section 268 of the Income Tax Act, 1961, as applicable to the assessment year under appeal, has some difference from that of section 67A of the Income Tax Act, 1922. The words "if the assessee was not furnished with a copy of the order when the notice of the order was served upon him" appearing in section 268 of the Income Tax Act, 1961 were not there in section 67A of the Income Tax Act, 1922. As such in view of our discussion regarding the provisions of section 268 made above the revenue gets no benefit from the said decision. Similarly, Babu Ram Chandra Bhan's case (supra) is also on section 67A of the Income Tax Act, 1922. In Rasipuram Union Motor Service Ltd.'s case (supra) the provisions of rule 10(1) of Appellate Tribunal rules, 1946 were involved which are as under :
"Every memorandum of appeal shall be in triplicate and shall be accompanied by two copies at least one of which shall be a certified copy of the order appealed against and two copies of the order of the Income Tax Officer."
As seen above, the said provision contains that the memorandum of appeal shall be accompanied by at least one certified copy of the order appealed against. The revenue does not get any benefit from this decision inasmuch as under Explanation to rule 9(1) of the Appellate Tribunal rules, 1963 the certified copy includes a copy originally supplied to the appellant as also a photostat copy thereof duly authenticated as true copy by appellant or his Authorised Representative and thus the essentiality of the memo of appeal being accompanied by a certified copy stands dispensed with. In Motilal Padampat Sugar Mills Co. Ltd.'s case (supra) the issue of waiver has been dealt with. In our opinion, the question of waiver of assessee's entitlement to obtain a certified copy is not involved here. It is one thing to say that a party has a right to obtain a certified copy which right that party has not waived, and it is quite another thing to say that the appeal by that party has been filed within period of limitation or beyond thereto. A party, aggrieved by an order, is undisputedly entitled, in law, to obtain a certified copy of the order whereby that party is aggrieved, but so far as the question of deduction of time taken in obtaining a certified copy of that order from the period of limitation prescribed for filing an appeal against that order is concerned, the matter shall be governed by the relevant provisions of law. In this respect the provisions of section 268 of the Income Tax Act relevant on the issue have already been discussed above. So far as the provisions under Appellate Tribunal rules, 1963 are concerned, rule 9 is relevant in the matter. Explanation to rule 9 having come into effect with effect from 1-8-1987, the appeal to the Tribunal can be filed by filing that copy of the order appealed against which was originally supplied to the appellant as also a photostat copy thereof duly authenticated as true copy by appellant or his Authorised Representative, as such copy is included within "certified copy" for the purposes of rule 9(1), as provided in the aforesaid Explanation. In that view of the matter despite revenue's entitlement to obtain a certified copy or the said right having not been waived the period of limitation prescribed for filing appeal to the Tribunal remains without any consequent effect therefrom.
6. The contention at Serial No. (ii) above that Explanation is an enabling provision, and supported by S.Sundaram Pillai's case (supra), need not be disputed. But the revenue hardly gets any benefit from this legal proposition in the fact-situation of the present case. The Explanation to rule 9 by enabling the treatment of the copy of the order originally supplied to the appellant or a duly authenticated true copy thereof to be a certified copy within rule 9(1) has facilitated the filing of appeal to the Tribunal with such aforesaid copy. In that view of the matter if the appellant files an appeal to the Tribunal beyond limitation the appellant will have to establish sufficient cause for the delay so as to get the delay condoned and appeal admitted by the Tribunal.
7. The contention mentioned at Serial No. (iii) above that rules cannot override Act is also in itself quite correct. The said proposition has also been discussed in Meghalaya Bonded Warehouse's case (supra), the copy of which has been filed by the learned Departmental Representative In the said citation there is a discussion of section 268 of the Income Tax Act in the context of obtaining certified copy of the order appealed against and exclusion of time taken for obtaining a certified copy in computing the period of limitation under section 253(3). In the said decision there is the observation that the rule cannot be equated to statutory enactment and the rule cannot override the provisions of the Income Tax Act. As pointed out earlier the said observation obviously propounds a correct legal proposition undeniably but here, however, we need be mindful of the fact that the requirement of filing of certified copy of the order appealed against along with the memorandum of appeal is neither laid down in section 268 nor in section 253(3) of the Income Tax Act but the said requirement originates from the provisions of rule 9(1) and it is only the Explanation to the said rule itself that provides that for the purpose of the said rule "certified copies" shall include the copy originally supplied to the appellant as well as a duly authenticated true copy thereof. As such no such question as rule overriding the Act is cropping up in the matter in hand.
8. The contention mentioned at Serial No. (iv) above is regarding the sufficient cause. The relevant citations referred to in the context are mentioned at serial Nos. 9 & 10 above. In Dinabandhur Sahu's case (supra) para 5 the matter of "sufficient cause" in that case has been dealt with. In that case a petition under section 81 of Representation of the People Act, 1951 was presented at the post office one day earlier to the due date which reached the Election Commission one day later than the due date. The Hon'ble Supreme Court held that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. On factual appreciation in that case the order condoning delay was held to be proper. In Mohanlal Chedilal's case (supra) the Tribunal had dismissed the appeal as time barred holding that the medical certificate did not inspire confidence as at the end of it was written in a different ink. On representation, the Hon'ble Allahabad High Court held on facts that writing in different pen and ink could alone be not a ground for rejecting the medical certificate. On factual appreciation the Hon'ble High Court held that the assessee had shown sufficient cause for not preferring the appeal within limitation. As such whether a sufficient cause for not filing the appeal within the prescribed period of limitation is made out or not will depend upon the facts of the particular case. In the present case, the copy of the order appealed against was received by revenue on 27-12-1988. Accordingly, the due date for filing appeal to the Tribunal was 26-2-1989. The provision of Explanation to rule 9 having come into effect with effect from 1- 8-1987, the appeal by the revenue could have well filed along with a copy of the order appealed against originally supplied to the appellant or along with its duly authenticated true copy without there being any indispensable necessity of furnishing a certified copy of the order appealed against along with the memo of appeal. From the record it is revealed that in the present case application for certified copy of the order was made on 24- 2-1989, i.e., just 2,3 days prior to the expiry of the period of limitation. After filing an application for a certified copy of the impugned order, the revenue could be said to have waited reasonably for a certified copy for a few days alone, say a week or so, and then in exercise of due diligence should have filed the appeal to the Tribunal without waiting any further for a certified copy, which, under law, was no more an essential prerequisite for presenting an appeal to the Tribunal. The Assistant Commissioner applying for a certified copy just when 2 or 3 days were left for the period of limitation to expire, and after so applying, though within time, then keeping on waiting for the same and allowing the period of limitation for filing an appeal to expire for as long a period as 804 days cannot be said to have acted with due diligence and reasonable prudence. The decision in Meghalaya Bonded Warehouse's case (supra) is of Gauhati Bench and is dated 18-7-1996, but the very same Bench subsequently passed another decision in ITA Nos. 643 & 644 (Gauhati) /91 dated 12-12-1996 as discussed in Gauhati Tribunal's order dated 19-8-1997 passed in Hanuman Pharmaceuticals' case (supra) wherein the subsequent decision of the Gauhati Tribunal dated 12-12-1996 passed in ITA Nos. 643 & 644 (Gauhati)/91 was followed. A copy of the said order of Gauhati Tribunal passed in Hanuman Pharmaceuticals' case (supra) has been filed by the Authorised Representative on record. Two more decisions of the Gauhati Tribunal, one passed in Satyanarayan Jiwaram's case (supra) and the other in Deepak Cottage Industries' case (supra) also support the view taken in Hanuman Pharmaceuticals' case (supra). The decision of the Income Tax Appellate Tribunal, Gauhati Bench passed in Kedia & Co.'s case (supra) relates to the year 1984 in this context. The certified copy to the impugned order was served on 27-2-1998 and the certified copy was applied for an 31-3-1984. However, at that time there was a necessity of furnishing at least one certified copy with the memo of appeal as the provision contained in Explanation to rule 9 of the Appellate Tribunal rules was not existing at that time and the same has come into effect only with effect from 1-8-1987. As such the revenue hardly gets any benefit from this decision. In view of our above discussion we are not satisfied that there was a sufficient cause for the revenue to file the appeal with a delay of 804 days.
9. The contention mentioned at Serial No. V above is regarding the authority to decide filing of appeal being Commissioner and not the Income Tax Officer. Anil Kumar Ray Chowdhury's case (supra) is also referred to in this context in the written submission. The legal proposition that it is the Commissioner who has a right to appeal and not the assessing officer as per provision of rule 253(2) and that the assessing officer cannot voluntarily file an appeal is not disputed. The learned Departmental Representative hardly needed to raise this contention before us inasmuch as this is in no way in issue in the present case as to whether the Commissioner has the right to appeal or whether the assessing officer has right to appeal. We are also not to enter into an enquiry here as to who, out of the two, is blameable for the fault, if any. A further probe into the issue embraced in the contention will only result in avoidable discussion/delay. Suffice it to say that whosoever may be authority vested with the right of appeal, the basic question involved in the matter before us is that the appeal should be filed within the period of limitation or else the appellant is to show a sufficient cause for the delay caused in filing the appeal beyond limitation.
10. The contention mentioned at Serial No. VI above is that the right of appeal is a substantive right and that there is no want of bona fide and no negligence on the part of the appellant. The relevant decision referred to is Mela Ram & Sons' case (supra). We have considered the contention on the issue. There is no dispute about the legal proposition that the right of appeal is a creation of statute and is a substantive right as held by the Hon'ble Supreme Court in Mela Ram & Sons' case (supra) on pages 613 and 614. The right of appeal being substantive or not is not the point at issue in the appeal. Besides, the right of appeal being substantive and a statutory one, does, in no way, does away with the requirement of filing the appeal within the period of limitation prescribed for the same in law. If the appeal, however, is filed beyond the period of limitation then the same can be admitted only if the appellant satisfied the Tribunal that there was sufficient cause for not filing the appeal within the period of limitation as provided in section 253(5). The point regarding sufficient cause for the delay has already been discussed above in contention No. IV.
11. The contention mentioned at Serial No. VIII above is regarding the interpretation of rule and that the interpretation should be to avoid any mischief or absurdity and that construction should be avoided which renders the provision of the Act or rule nugatory and thereby defeats the objects of the provision. The relevant decisions referred in the learned Departmental Representative's written submission are those mentioned at Serial Nos. 13,14 and 15 above. In Sevantilal Maneklal Sheth's case (supra), the Hon'ble Supreme Court has held that it is a sound rule of interpretation that the statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statue. In Yuvraj Amrinder Singh's case (supra), the Hon'ble Supreme Court has held that the provision should be interpreted in such a manner as not to nullify the object of the provision and that a harmonious construction should be preferred to the construction which leads to conflict between the two provisions. In National Taj Trader's case (supra), the Hon'ble Supreme Court has held that the principle of strict interpretation applies to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statue which contained machinery provisions. In our opinion, the revenue gets no benefit from the above citations in the facts of the case inasmuch as the above legal propositions are in no way being violated and rather it is in confirmity therewith that we have appreciated the facts of the case in the light of the relevant provision of the statue and the rules. The very object of inserting Explanation to rule 9 of the Appellate Tribunal Rules, 1963 is to facilitate the early filing of appeal by dispensing with the necessity of keeping on waiting for the availability of duly `certified copy' strictly so-called, and thereby expedite the delivery of justice. The object of the said provision obviously cannot be to help the appellant make the matters pend and linger on by waiting for a certified copy so as to file the appeal not for a few days but for not less than several hundred days.
12. In view of our above discussions we find that this appeal by the revenue is time-barred by 804 days and we do not find any sufficient cause for the said delay. We, therefore, dismiss this appeal as time-barred.