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TMI Blog1987 (8) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the original trust deed as confirmed by the Settler himself ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal had not misdirected itself in holding that the ITO should not have made the protective assessments on the assessee-trust In the status of AOP ?" 2. The assessment years involved are 1975-76 and 1979-80. The appeals for these years were disposed of by the Tribunal by its consolidated order dated29-11-1985. The Commissioner's applications under sec. 256(1) for both the above years show that the aforesaid order of the Tribunal was served on the Commissioner on9-12-1985. Applications under sec. 256(1) were, however, filed only on19-6-86. There was thus a delay of 132 days. 3. A defect-memo was issued to the Commissioner by the Tribunal pointing out that the Commissioner's applications were time barred by 132 days. This memo was issued to the Commissioner on25-7-86. The Commissioner has explained the delay as due to the following reasons: "(1) That the Tribunal was pleased to pass the order in regard to A. Ys. 1975-76 and 1979-80 on29-11-85which was sent to the petitioner's office on9-12-1985. In regard to A.Y. 1980-81, the orders we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the applicant was prevented by sufficient cause from presenting the application within the period specified i.e. within 60 days of the date of service of the Impugned order of the Tribunal. If so satisfied, the Tribunal may allow the application to be presented within a further period, not exceeding 30 days. Shri Ganesan points out that it was common ground that the order of the Tribunal was served on the Commissioner on9-12-1965. The period of 60 days specified in sec. 256(1) and the additional period of 30 days stipulated in the proviso to sec. 256(1) add up to 90 days. The Commissioner's application could have been saved from limitation, if they had been filed at least by9-3-1986i.e. within 90 days, assuming that the Tribunal came to be satisfied that the Commissioner was prevented by sufficient cause from presenting the applications within 60 days of9-12-1985. The Tribunal, however, has no power to condone a delay of 132 days and admit the present applications for consideration on merits. Shri Ganesan, therefore, submitted that the applications have to be rejected in limine. 6. We have considered the position, obviously, in this case, the delay is much more than 30 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 60 days. Thus my learned brother has proposed the dismissal of the reference applications. 3. The matter was discussed with my learned brother and a request was made that a finding should be recorded about the adequacy or otherwise of the reasons mentioned by the applicant for condonation of the delay. I, however, could not pursue my learned brother to do so. As according to him since the Tribunal had no power to extend the delay of more than 30 days in this case the delay already being of 132 days the going into the reasons for delay was uncalled for and unjudicious. 4. Here unfortunately the difference arose. I have carefully gone through the reasons mentioned by the applicant and am convinced that taking into consideration the movement of record in the Government offices, some delay is bound to take place. Moreover in the Government the decisions are taken at various levels. Therefore it takes time to take a final stand as to whether a reference was required to be filed or not. The delay was caused on account of mixing up of the files and time taken in taking a decision. In my considered view the reasons shown by the applicant are adequate enough to infer, that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amurthy, President - Starting from the stage at which it came to me as a Third Member to express my opinion on the difference of opinion that arose between the learned Members, who heard these reference applications originally, the short point of difference of opinion to express it in the words of the Members, who framed it, is: "Whether, on the facts and in the circumstances of the case, the ITAT have power under section 256(1) of the Act, to condone the delay in filing the reference applications ?" 2. Stated thus, no one can deny the power of the Tribunal to condone the delay in the filing of reference applications for the very simple reason that that power was specifically granted by the Legislature to the Income-tax Appellate Tribunal in terms of section 256(1) of the Income-tax Act, 1961. There cannot, therefore, be any doubt that the Tribunal has got the power to condone the delay provided the requirements of the section, which conferred this power on the Tribunal, are satisfied. Now let us notice the concerned section : "256. (1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason. This, in my opinion, is the correct understanding of the provisions of section 256(1). Judged in the light of this understanding my answer to the question posed to me for my opinion can only be that the Income-tax Appellate Tribunal have power under section 256(1) of the Income-tax Act, 1961 to condone the delay in filing the reference applications. But this difference of opinion between the Members does not refer to the period during which the power of the Tribunal of condonation of delay could be exercised by the Tribunal and for the period of condonation over which difference arose one has to go to the facts of the case. 3. The Commissioner of Income-tax, Delhi VIII, New Delhi Presented two reference applications u/s 256(1) raising four questions on19-6-1986. The order of the Tribunal that gave rise to these questions was disposed of by the Tribunal on29-11-1985. This order was served on the Commissioner of Income-tax on9-12-1985. There was a delay of 132 days in presenting the reference applications by the Commissioner. The question arose before the Tribunal whether such a delay could be condoned by the Tribunal. A defect memo was issued to the Commissioner by the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys starts not from the expiry of initial 60 days but from the last date up to which the Tribunal feels that the Commissioner has reasonable cause for not presenting the reference applications. According to him, therefore, the period of 30 day must be counted from the end of 132 days and since the applications filed were within 30 days after the end of 132 days, the reference applications were in time and therefore should be entertained. Thus, the difference of opinion arose between the learned Members and the same was referred to the Third Member for opinion in the manner in which it was couched above. The question did not refer to the number of days but only to the power of the Tribunal to condone the delay. 4. I have already expressed my view that the Tribunal did have the power to condone the delay but that power is hedged in by a limitation of 30 days. The learned Judicial Member now feels that the further period of 30 days should commence from the date till the reasonable cause for the delay existed. Here I fail to appreciate the logic and therefore I am unable to walk along with him. Normally the period of delay has to be entirely explained. If the entire period of delay is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier, uncertain results. After the period of one year, for which there is a reasonable cause, there would not be any further delay. One would explain the entire delay from the time the order was received till the time the reference applications were presented as due to some reasonable cause. If after showing the reasonable cause for the entire period, I see no occasion to a further delay to take place except in a situation which I have mentioned above. Even then the delay will become totally unspecific and imprecise. The Legislature cannot be expected to give a power to condone the delay in such imprecise and indefinite terms. The periods specified have got to be certain, ascertainable and never vague and ambulatory. The very purpose of the legislation would be defeated in this way. Further the wording of the power as I have indicated earlier, does not lend support to any view other than the view that the power of the Tribunal to condone the delay is a further period not exceeding 30 days from the period of 60 days referred to in sub-section (1) of section 256. Since these words do not permit or bear any other interpretation and the meaning of this expression is very clear to m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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