No delay when order was not served but assessee obtained certified copy of order and then filed appeal in time

[CA DEV KUMAR KOTHARI]

Relevant links and references:

 M/s. Kenaram Saha and Subhas Saha Versus  Commissioner of Income Tax, Kolkata-XXI [ 2009 (9) TMI 1017 - CALCUTTA HIGH COURT ]

Related  order of ITAT, against which appeal was filed, admitted and substantial question of law were framed by honourable Calcutta  High Court.

Income-tax Officer, Ward - I, Murshidabad. Versus Kenaram Saha And Subhash Saha & PARAMOUNT LEATHERS AND ANOTHER 2008 (3) TMI 350 - ITAT CALCUTTA

Delay and condonation:

Any appeal or petition is to be filed, within prescribed period of limitation and in case there is no such prescription then within a reasonable time. In case appeal is not filed within prescribed period of limitation, then it can be filed with an application for condonation of delay explaining reasons for delay and reasonable cause for such delay.

If a reasonable cause is made out and the Court is satisfied with the same, the Court (or concerned authority) can condone delay in filing of appeal or application and adjudicate the same.

When order has not been served:

Usually limitation period for filing of appeal or application starts from the day on which the order against which appeal or application is made. In case order has not been served on assessee, he cannot file appeal. In some situations, when assessee / appellant come to know about such order, he can make an application for copy of the order and then file an appeal. If in such situation appeal is filed within prescribed limitation counted from the date when copy of order is received, then there is no delay in filing of appeal. However, to be on safe side, it is desirable to file a petition for condonation of delay, so that in case judges have different view on the issue of limitation starting point, they can consider petition for condonation and grant application and admit appeal.

Case of Kenaram Saha and Subhas Saha (supra.)

In this case also order was not served on assessee. When assessee came to know about order he applied for copy of order and filed appeal after copy of the order was received. Assessee also made an application for condonation of delay.

The counsel for assessee submitted that there was no delay in filing of appeal because order was not served. The Court asked the standing counsel of revenue to verify this aspect. There was no finding contrary to the stand of assessee. No instruction could be obtained and no affidavit was  filed on behalf of revenue. 

Therefore Court took uncontroverted position that order was not served.

  From order of Court:

a. We accept, therefore, the uncontroverted averments made in the application for condonation of delay that no copy of the order was ever served on the appellant.

b. As such, there is no question of delay in filing the appeal.

c. The application for condonation of delay becomes redundant and is, therefore, disposed of as redundant.

d. The office is directed to register the appeal, if the appeal is otherwise in form.

The Court further held that theappeal will be heard on substantial questions of law as framed by the Court.

Conclusion:

As there was no service of order on assessee/ appellant, and assessee filed appeal after obtaining certified copy of order, there was no delay. The appeal was admitted.

Though in this case, honourable judges agreed and held that there was no delay, but in such situations to be on safe side, it is desirable to file a petition for condonation of delay stating facts that there was no service of order against which appeal is being filed, when assessee came to know about order, when application for copy of order was made, when copy was received and other steps taken for filing of appeal diligently and withoutloss of time.

This also becomes important because orders of Tribunal are also published on website of ITAT and therefore, knowledge about order and contents of order can be easily gathered. If after reading of order from website, it is felt that an appeal is to be filed, then immediately steps should be taken for filing of appeal.

Timely filing of appeal is always in interest of appellant. In case of delay, first and very major hurdle is condonation of delay. Many times condonation of delay is not allowed if a case for reasonable cause is not found. Sometimes due to mistake or negligence of concerned persons, the reasonable cause may be lost.

Furthermore, what is reasonable is to be decided by personal approach and can be  a very subjective matter and it can very well  depend on approach , nature, mood , even temporary  mood of the judge at the time of hearing and then at the time of passing order. This can be observed from reported judgments in which petition for condonation is allowed or rejected. After all judges, though impartial are still human being, and subjectivity is an important aspect of human nature and behaviour. Therefore, to avoid all such contingencies, be alert, file appeals timely.