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TMI Blog1988 (10) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of thirty days from the date of service of a copy of the order on the transferor whichever period expired last. Forty-five days from the date of the order expired on 25-4-1988 and thirty days from the date of service of the order expired on 28-4-1988. With reference to the date of 28-4-1988, which is the later of the two dates, the appeal as filed on 25-5-1988 is belated by 26 days. Accompanying the appeal is an affidavit by the transferor stating that she was 65 years' old and was keeping indifferent health and was originally staying at Madras and shifted to Kodaikanal under medical advice from April, 1988. The affidavit speaks of certain letters having been received at her house before she went to Kodaikanal when she was unwell and she had instructed her servant to forward these letters to the Auditor. It was only much later that she came to know that one of the papers which has been received at her house was an order of acquisition passed by the IAC (Acquisition) and immediately on knowing that the appellant directed her servant to contact her Auditor and get an appeal prepared and this was sent to her at Kodaikanal for signature. Thus, there was a delay in filing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court as against a reference in relation to assessment matters. This was in conformity with the procedure which was followed in a Civil Court. According to him, therefore, the Tribunal while deciding an appeal under Chapter XX-A was really a Court and the catena of decisions which went to hold that section 5 of the Limitation Act would not apply to the Income-tax Tribunal since the Tribunal was not a Court would not really be clinching of the issue. 5. The next contention of the learned counsel was that where the Legislature intended that the Tribunal should not condone delay beyond a certain period as in the proviso to section 256(1), the Legislature has stipulated the further period up to which alone the delay could be condoned, namely, 30 days from the date limitation had set in. In the present instance, the Legislature has not placed any time limit, and as such, the mere fact that there was mention that, provided an application was presented within the period of time limit, the Tribunal could permit the appeal to be presented after any length of time would not restrict the powers of the Tribunal to condone the delay in appropriate cases even if the application for condona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Limitation Act did not have the effect of extending the application of the Limitation Act to the Income-tax Appellate Tribunal. He also submitted that the issue whether section 5 of the Limitation Act could be invoked in relation to appeals before the Income-tax Appellate Tribunal had come up for consideration in respect of matters arising under section 66(1) of the income-tax Act, 1922 and the unanimous view of three High Courts, i.e. the Kerala High Court in CIT v. P.C. Vareedkutty [1971] 81 ITR 206, the Calcutta High Court in the case of CIT v. Assam Oil Co. Ltd. [1972] 83 ITR 456 and the Gujarat High Court in the case of CIT v. Western India Engg. Co. Ltd. [1970] 77 ITR 165 was that the provisions of section 5 of the Limitation Act could not be invoked in relation to appeals before the Income-tax Appellate Tribunal because the Income-tax Appellate Tribunal was not a Court. The learned Departmental Representative also relied on the decision of the Delhi High Court in the case of Deen Dayal Goyal v. ITAT [1986] 158 ITR 391 where he submitted that the High Court had considered the impact of the provisions of limitation under section 269G and restriction of the powers of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O [1954] 25 1TR 400 at 405) : "Whatever may be the precise definition of a Court it is not difficult to reach the conclusion that the Income-tax Appellate Tribunal as constituted under the Income-tax Act is not a 'Court'. Its proceedings are not public vide section 54." no longer existed. The Madras High Court in the very case relied on by the learned counsel had stressed on the fact that merely because there were certain provisions in the Act by which some of the powers exercisable by the Courts under the Civil Procedure Code could be exercised by the Tribunal, it did not convert the Tribunal into a "court". Reading the judgment as a whole, we are unable to agree with the learned counsel that merely because the secrecy provisions have now been removed in respect of proceedings before the Tribunal by the Tribunal Rules, the Tribunal gets converted into a "court". There is, in particular, a very illuminating discussion on whether the Tribunal is a "court" or not in the case of Western India Engg. Co. Ltd. and having regard to this elaborate discussion which refers to the decisions of the Supreme Court in CIT v. Walchand & Co. (P.) Ltd. [1967] 65 ITR 381 and ITO v. M.K. Mohammed Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpreted in such a way as to permit the condonation of delay unless an application is preferred before the Tribunal before the expiry of the period of limitation specified in sub-sec. (1) of sec. 269G. 12. Having regard to the decision of the Delhi High Court to which we have adverted, as also the very recent decision of the Andhra Pradesh High Court in the case of B. Subba Rao delivered on March 11, 1987, we agree that preponderance of judicial opinion on the point is that provisions of sec. 5 of the Limitation Act cannot be called in aid by an appellant in seeking any condonation of delay when an appeal is not presented within the statutory period prescribed under the proviso to sub-sec. (1) of sec. 269G. We may mention that the aspect of non-application of the provisions of sec. 5 of the Limitation Act to the Income-tax Appellate Tribunal because the Tribunal was not a Court had not been adverted to or argued before the Tribunal in the case of Cyril Albert D'Souza, to which one of us, i.e., the Judicial Member, was a party. 13. We are also not in a position to persuade ourselves with reference to the arguments as put forth that different considerations should prevail in decidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al preferred by the transferee on an earlier date where the order had been served on the transferee on a later date, the Tribunal in IT Acq. No. 35/Mds./88 had held that the Tribunal had no powers to condone the delay, the same decision should hold good here also. According to the learned counsel for the assessee, the arguments put forth therein differed. Under the Scheme of Chapter XX-A, both the transferor and the transferee have separate rights of appeal. The appeal before us is that of the transferor. With reference to the same, we have independently examined on the facts and bearing in mind the law applicable, whether we have powers to entertain the request for condonation of delay. It is, therefore, not necessary for us to go into the facts in the transferee's case. Since we have held we have no powers to condone delay in the present case, the appeal of the transferor has to be dismissed as barred by limitation. In the view that we have taken, we do not go into the merits of the reasons which caused the delay. Suffice it to say that arguments that hardship may result in genuine cases if such an interpretation of law is taken were adduced before the High Court of Delhi in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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