1997 (10) TMI 99 - AT - Income Tax

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Whether the exclusion of time taken in obtaining a certified copy applies.
3. Interpretation of relevant legal provisions and rules.
4. Authority to decide filing of the appeal.
5. Right of appeal as a substantive right.
6. Sufficient cause for delay in filing the appeal.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The primary issue is the 804-day delay in filing the appeal by the revenue. The revenue filed a petition for condonation of the delay, arguing that the delay was due to the non-receipt of a certified copy of the appellate order. The Tribunal assessed whether there was a sufficient cause for the delay and concluded that the revenue did not act with due diligence or reasonable prudence. The appeal was dismissed as time-barred.

2. Exclusion of Time Taken in Obtaining a Certified Copy:
The Tribunal examined whether the time taken to obtain a certified copy of the appellate order should be excluded from the limitation period. According to Section 268, the time requisite for obtaining a copy of the order appealed against can be excluded only if the assessee was not furnished with a copy of the order when the notice was served. In this case, the revenue received a copy of the order on 27-12-1988, and the application for a certified copy was made on 24-2-1989. The Tribunal found that the condition for exclusion under Section 268 was not satisfied, as the notice of the appellate order was served with a copy of the order.

3. Interpretation of Relevant Legal Provisions and Rules:
The Tribunal discussed the interpretation of Rule 9(1) of the Appellate Tribunal Rules, 1963, and its Explanation, which allows the filing of an appeal with a copy of the order originally supplied or a duly authenticated photostat copy. The Tribunal emphasized that the rules cannot override the provisions of the Income-tax Act. The Tribunal also referred to various decisions, including those in Sardarmal Khumchand's case and Rasipuram Union Motor Service Ltd.'s case, to support their interpretation.

4. Authority to Decide Filing of the Appeal:
The Tribunal acknowledged that the authority to decide the filing of the appeal lies with the CIT and not the ITO, as per Section 253(2). However, this point was not in dispute in the present case. The Tribunal focused on whether the appeal was filed within the period of limitation or if there was sufficient cause for the delay.

5. Right of Appeal as a Substantive Right:
The Tribunal recognized that the right of appeal is a substantive right created by statute. However, this right does not negate the requirement to file the appeal within the prescribed period of limitation. The Tribunal referred to the decision in Mela Ram & Sons' case to support the view that the right of appeal must be exercised within the statutory time limits unless sufficient cause for delay is shown.

6. Sufficient Cause for Delay in Filing the Appeal:
The Tribunal analyzed whether there was sufficient cause for the 804-day delay in filing the appeal. The Tribunal found that the revenue applied for a certified copy just before the expiry of the limitation period and waited an unreasonable amount of time before filing the appeal. The Tribunal concluded that the revenue did not act with due diligence and failed to establish sufficient cause for the delay.

Conclusion:
The appeal by the revenue was dismissed as time-barred due to the 804-day delay in filing. The Tribunal found no sufficient cause for the delay, emphasizing that the revenue did not act with due diligence and reasonable prudence. The Tribunal also clarified the interpretation of relevant legal provisions and rules, reinforcing that the right of appeal must be exercised within the statutory time limits unless sufficient cause for delay is demonstrated.