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TMI Blog1999 (2) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that the appeal has been filed beyond time limit prescribed under section 249(2). The Ld. Commissioner (Appeals) has further observed that no application for condonation of delay under section 249(3) has been filed by the appellant and in absence of any application for condonation of delay, the Ld. Commissioner (Appeals) dismissed the appeal of the appellant. 3. The Ld. Counsel of the appellant pleaded that the delay in filing of the appeal was only one day and the Ld. Commissioner (Appeals) entertained the appeal, heard the arguments at length and also accepted the arguments put forth by the appellant. The Ld. Counsel of the appellant pleaded that at no stage the appellant was informed regarding delay in filing of the appeal. Alongw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. That our official had tried his level best to present and file the appeal within stipulated statutory time but due to the circumstances beyond the control of the official the appeal was presented on the next day morning of the stipulated statutory period for filing appeal. 8. That the averments made in the affidavit are correct and true to the best of knowledge, belief and record available in the office." 4. The Ld. Counsel also filed an affidavit or Shri V. P. Sharma, Assistant Financial Advisor, of the Company explaining therein the reason of delay for one day. The Ld. Counsel also filed copies of the notice of fixation of appeal and adjournment of appeal on various dates and written submissions filed before the Ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s paid the tax due on the income returned by him; or (b) where no return has been filed by the assessee, the assessee has paid an amount equal to the amount of advance tax which was payable by him; Provided that [in a case falling under clause (b) and] on an application made by the appellant in this behalf, the Dy. Commissioners (Appeals) or as the case may be, the Commissioner (Appeals) may, for any good and sufficient reason to be recorded in writing, exempt him from the operation of provisions of (that clause)" Section 249(3) gives powers to the Ld. Commissioner (Appeals) to admit an appeal after the expiration of the period if he is satisfied that the appellant had sufficient cause for not presenting it within the period prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 SC 832. Even though order 41, Rule 3A(1) of the Civil Procedure Code makes it mandatory for a person presenting an appeal after the expiry of the period of limitation to file an application for condonation of delay otherwise the appeal will be summarily dismissed by the competent Judge or Authority, but this Rule of the Civil Procedure cannot be strictly applied in the Income-tax matters. The Hon'ble Gujarat High Court has held in the case of Naran Anappa Shethi vs Jayantilal Chunialal Shah AIR 1987 Guj. 205 and Markland (P.) Ltd. vs State of Gujarat AIR 1989 Guj. 44-46 that the first appellate authority is not prohibited to condone the delay in absence of an application. Section 249(3) of the Income-tax Act does not prohibit the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sts for condonation of delay, the same should be analysed in a judicious manner. The Hon'ble Karnataka High Court has dealt with similar situation in the case of Mak Wood Industries vs State of Karnataka [1991] 83 STC 352. Whereby the Hon'ble High Court has held that in a situation where the authorities below dismiss the appeal as time barred without proper application of mind to the cause shown by the appellant in regard to delay in filing of the appeal, the order dismissing the appeal in limine cannot be maintained but has to be set-aside. The Hon'ble Supreme Court has held in the case of Maharashtra State Co-operative Cotton Growers' Marketing Federation Ltd vs Shripati Pandurang Khade, [1989] Supp (1) SCC 226, 23 that before dismissing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happens is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay ? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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