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TMI Blog1997 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 (Gauhati) and of decision of I.T.A.T., Gauhati, in ITO v. Kedia & Co. [IT Appeal No. 539 (Gauhati) of 1990 dated 27-9-1995]. As against this the learned A.R. 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 [IT 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 D.R.'s written submission. The decisions referred to in the learned D.R.'s written submission along with those of which learned D.R. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 A.R. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 seri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any further for a certified copy, which, under law, was no more an essential prerequisite for presenting an appeal to the Tribunal. The ACIT 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 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 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 has been filed by the A.R on record. Two more decisions of the Gauhati Tribunal, one passed in Satyanarayan Jiwaram's case and the other in Deepak Cottage Industries' case also support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght as held by the Hon'ble Supreme Court in Meld Ram & Sons' case 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 D.R.'s written submission are those mentioned at serial Nos. 13, 14 and 15 above. In Sevantilal M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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