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TMI Blog1982 (7) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, on a news item in the Economic Times dated 19-3-1980 which reported a decision of the Bombay High Court decided on a writ petition in the case of Manubhai A. Sheth v. N.D. Nirgudkar, Second ITO [1981] 128 ITR 87 that capital gains arising on the sale of agricultural land used for agricultural purposes was not liable to tax. The assessee sought to explain before the Commissioner (Appeals) that mistakenly he had returned the income at the original stage, but after the decision of the Bombay High Court which came to his notice, he knew that the above income was not liable to tax. After the news item appeared in the Economic Times, he waited to collect the actual judgment laying down the above proposition and immediately after his legal advisers looked into the matter and without any further delay filed an appeal. The Commissioner (Appeals) found that there were two periods of delay to be condoned, the one up to the publication of the judgment in the Economic Times and another thereafter. He was satisfied that for both these periods the assessee had sufficient cause for not filing the appeal on time. He, therefore, allowed the assessee's appeal condoning the delay and relying on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng an appeal (sic). There are several decisions published from day-to-day and several judgments delivered by the High Courts and the Supreme Court and if all settled matters were to be disturbed with delivery of every such judgment, according to the learned counsel, there would be no settled law in the country at all. Everything will be unsettled and finality would be unknown. It is also pointed out that apart from generally giving an explanation for the delay in filing of an appeal, the assessee has to explain every day of the default. This he can do neither with reference to the period up to the time the decision was noted in the Economic Times nor the period thereafter up to the date of filing the appeal. A mere general statement of the assessee that until be saw the item in the newspaper he was not aggrieved and that immediately thereafter he consulted his lawyer and filed the appeal would not be sufficient to condone the long delay in filing the appeal. 5. The learned counsel also objected to the admission by the Commissioner (Appeals) of extra evidence without resorting to the provisions of rule 46A. Even if the Bombay High Court decision laid down that sale of agricultural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee. In this case, the decision of a subsequent binding authority indicated to the assessee that he has been overtaxed. This was a clear grievance against which he could appeal. 8. On the question of delay itself and condoning it, it is pointed out that the assessee became aggrieved only when he saw from the reported decision of the Bombay High Court that he has returned as income something which was not taxable. 18-10-1975 was the last date for filing the appeal. The decision of the Bombay High Court was referred to in the Economic Times on 19-8-1980. Immediately after knowing this, the assessee had contacted his chartered accountants and solicitors and even the papers were prepared for the counsel. On 1-10-1980 the counsels advised that the appeal be filed and within two days on 3-10-1980, after consultation with the chartered accountants and the solicitors, the appeal was filed. The assessee had acted with a maximum diligence in pursuing the appeal. The Commissioner (Appeals) had correctly condoned the delay. 9. The Commissioner (Appeals) had not admitted any extra evidence attracting the provisions of rule 46A. From the evidence on record available at the time of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a fresh cause of action was arising and with another decision of the same or some other High Court the cause of action disappearing. What we want to emphasise is while the decision of the High Court settles the law for the particular state it is not always that all the High Courts decide the same matter in the same manner. Another High Court might give a different decision on the matter. A decision of a High Court on law cannot, therefore, even pursuing the logic of the assessee's argument, make him aggrieved. Basically, therefore, and apart from the question of the assessee having been assessed on a returned income, we cannot accept the position in fact or in law that the assessee is aggrieved in this particular case. Perhaps it might have been a different position if the assessee has acted on a decision of the Supreme Court so that at least a pendulum-like arising and extinction of grievances with the decision of every High Court may not arise. The Commissioner (Appeals)'s order could be set aside on this one point alone. 12. We also do not see how in the present case this enormous delay could be condoned. The twin arguments of the learned counsel for the assessee are that j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Supreme Court held that section 20 was an absolute bar against the institution of a suit and that the appellant could have either appealed or applied for revision and prayed for condonation of delay on the ground that the mistake which was responsible for the illegal recovery was when the Supreme Court pronounced its judgment and that such a plea would have been competent under section 22B of the Sales Tax Act. Section 22B gave power to the prescribed authority to extend the period of limitation if it is satisfied that the party applying for such extension had sufficient cause for not preferring the appeal or making the application within such period. Section 23A of the Sales Tax Act provided for rectification of the mistake. The facts of the case indicate that this was a clear case of a mistaken payment, the Supreme Court having given its opinion on the legal position. The Supreme Court also found that the time limit for making a rectification was not passed. The Supreme Court also found that it was open to the appellant to move to the High Court under article 226 of the Constitution. It was under such circumstances that the decision on the suit filed on the original side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en pursuant to a Supreme Court's decision. 19. An analysis of the cases cited before us clearly indicates that the provision where rectification or an alleged grievance on account of a decision accepted was possible only where such rectification could be done within the period of time. A final legal pronouncement of the Supreme Court alone has been regarded as justifying interference by the appellate or revisionary authorities. The decisions are given on the peculiar facts of the cases and cannot be regarded as laying down a general position, helping the assessee's case. 20. Apart from the above, even if the High Court's decision could be regarded as giving rise to a grievance and a cause of action. It is doubtful whether the delay in filing an appeal could be condoned for that reason. Periods of limitation are provided not to unsettle many settled matters giving rise to complicated problems of right, interest and financial and other liability. If every case where a decision has been arrived at not merely in the near past but several years earlier, is unsettled on the basis of decisions not merely by a High Court but even by the Supreme Court, one can imagine the multiplicity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is nothing on record to show that the lands giving rise to capital gains were also the lands which produced the agricultural income returned for some of the years. The decision of the Supreme Court in the case of Gurjargravures read with the clarification given in the decision of the Andhra Pradesh High Court in the case of CIT v. Gangappa Cables Ltd. [1979] 116 ITR 778 does not help the assessee. 22. We find also substance in the argument of the learned counsel for the department that sufficient material was not available to the Commissioner (Appeals) to come to the decision that the lands in the present case which yielded the capital gains were agricultural lands which were cultivated from year to year. In fact there was no material for the Commissioner (Appeals) to come to the conclusion that the criteria laid down in the Bombay High Court decision were satisfied in the present case. The Commissioner (Appeals) has not admitted any fresh evidence in this regard. The reference of the learned counsel for the department to rule 46A may not, therefore, be relevant, but we have certainly to hold that the Commissioner (Appeals) had no materials to hold that the lands in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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