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TMI Blog1978 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... t appeal the Commissioner challenged the order of the AAC allowing the exemption of a salami receipt of Rs. 74,868 under s. 10(3) of the I.T. Act, 1961. The order of the AAC was passed on March 1, 1972. Under s. 253(3) of the I.T. Act, 1961, every appeal under sub-s. (1) or sub-s. (2) shall be filed within 60 days of the date on which the order sought to be appealed against is communicated to the assessee or to the Commissioner, as the case may be. Section 250(7) provides that on the disposal of the appeal, the AAC shall communicate the order passed by him to the assessee and to the Commissioner. The AAC communicated a copy of his order to the CIT in compliance with s. 250(7) on May 12, 1972. The appeal was filed on July 4,1972. The appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision of s. 250(7) and, accordingly, for the purpose of filing the appeal, time would run from the date of the receipt of the copy of the order, that is, from April 7, 1972. If the period of limitation was computed from April 7, 1972, the appeal was filed beyond time. The Tribunal accepted the contention made on behalf of the assessee and came to the finding that the ITO received a copy of the order from the AAC as the agent of the CIT and, as such, the time for filing the appeal should be computed from April 7, 1972, and so computed it was filed beyond the period of limitation. The Tribunal, however, found that the order was directly communicated later on to CIT, and that accordingly, there was some misunderstanding caused by the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of limitation. Prima facie the appeal was filed within time, that is, within 60 days from the date of the communication of the copy of the order of the AAC to the CIT. The question, however, is whether the Commissioner by the executive instruction appointed the ITO his agent for the purpose of receiving the copy of the order of the AAC. No copy of the executive instruction was produced before the Tribunal, but it was stated on behalf of the CIT that with a view to expedite the filing of appeals and to regulate his work, he issued certain executive instructions to the ITO to obtain the copy of the order from the AAC and to keep the appeal ready for filing, so that the same could be filed without unnecessary delay, if after the communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT appointed the ITO his agent for the purpose of receiving a copy of the order of the AAC, nor did the AAC treat the ITO as the agent of the Commissioner, for he had also sent a copy of his order to the CIT directly as provided by s. 250(7) of the Act. The finding of the Tribunal that the Commissioner appointed the ITO his agent is based on mere assumption without any material to support the same. While we are on this point one other fact may be considered. It is the verification by the ITO of the memorandum of appeal on April 24, 1972. The memorandum of appeal could not have been verified on that date, because so long as the Commissioner did not permit the filing of the appeal, the memorandum of appeal could not be verified. The Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of delay. But so far as the provision of sub-s. (5) is concerned, it authorises the Tribunal to condone the delay if there is sufficient cause. The only condition that is to be fulfilled is that the Tribunal must be satisfied about the existence of sufficient cause for not presenting the appeal within the period of limitation. In our view, therefore, if the materials on record show that there was sufficient cause for the delay in filing the memorandum of appeal and if the Tribunal is satisfied about the same, the Tribunal can condone the delay. In the instant case, the Tribunal has pointed out that the delay in filing the appeal was due to some misunderstanding as the AAC served a copy of his order on the Commissioner on May 12, 1972, even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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