P L D 1961 Dacca 613 (PLP)

SATTAR, J.‑This reference under section 66 (2) of the Income‑tax Act, 1922 by the Income‑tax Appellate Tribunal, Dacca Bench, Dacca arises under the following circumstances. The applicants were assessed with Income‑tax for the assess ment year 1951‑52 by the Income‑tax Officer on' the 10th day of May 1954. Against that the applicant preferred an appeal to the Appellate Assistant Commissioner of income‑tax 'B' Range, Chittagong and the Appellate Assistant Commissioner by his order dated the 31st March 1955, reduced the assessment by Rs. 11,

000. Against the said order the applicant sent an appeal to the Income- tax Appellate Tribunal at Lahore by post on the 6th June 1955. The appeal reached the Tribunal on the 11th day of June 1955, that is one day late after the statutory period of limitation of 60 days. The appeal, therefore, was not entertained by the Tribunal on the ground that it was time‑barred. The applicant's petition for condonation of delay was also rejected. The applicant then moved the Tribunal for reference of the question whether in view of the fact that there was a delay of six days by the postal autho rities in delivering the, appeal of the applicant which resulted in the applicant's appeal being time‑barred by one day the circum stances constituted a sufficient cause to condone the delay of one day. The Tribunal however, thought that the question was not a question of law and in that view of the matter rejected the applicant's petition for reference to this Court. The applicant then moved this Court under subsection (2) of section 66 of the Income‑tax Act and obtained a Rule which ultimately was made absolute and the question that has been referred by the Tribunal for being answered by this Court is in the following terms : "Whether the postal delay in the transmission of the appeal petitions by six days constitutes a reasonable and sufficient cause for condoning the delay?" It has been contended on behalf of the applicant that the facts and circumstances, established in this case go to show that the delay of one day in lodging the appeal before the Tribunal was not due to the laches of the applicant. The applicant had given reasons as to why the appeal could not be sent to the Tribunal earlier than the 55th day after the receipt of the decision of the Appellate Assistant Commissioner. The only question, therefore, that arises for determination is whether the delay caused by the postal authorities in delivering the Air Mail registered letter of the applicant, containing their appeal, against the order of the Appellate Assistant Commissioner constitutes a sufficient cause for condoning the delay of one day. It may be pointed out that under section 33 subsection (2) (a) of the Income‑tax Act, the Tribunal has been given the discretion to admit appeals even after the expiry of 60 days referred to in subsections (1) and (2) of the said section provided the Tribunal is satisfied that there is sufficient cause for not presenting the appeal within that period. The applicant, it may be stated, when they filed the application for condoning the delay before the Tribunal annexed with the application some acknowledgment receipts of registered letters showing that registered letter from Chittagong were delivered at Lahore within four days of the date of delivery. The question whether, certain proved facts constitute sufficient cause for condoning delay, is a question of law, and it has been held to be so by this Court while disposing of the Rule obtained by the applicant under section 66 (2) of the Income‑tax Act. We may further point out that the same view has been taken in the decision in the case of Kishan Chand v. Mohammad Hussain and another (A I R 1942 Lah. 94). The only point that, therefore, arises in this case for our determination in answering the question referred to us by the Tribunal is whether the facts that have been established, in this case, will constitute a sufficient cause within the meaning of sub section (2) (a) of section 33 of the Act for condoning the delay. We have already indicated that the applicant and justifiable grounds for not sending the appeal before the 55th day from the receipt of the Appellate Assistant Commissioner's order disposing of their appeal. So far ‑as the delay that occurred after they posted their appeal on the 55th day at Chittagong which was of one day only we are satisfied that the facts clearly go to show that it was due to the laches on the part of the postal authorities and therefore, the delay was caused not on account of any fault of the present applicant and there was sufficient cause for the applicant's not presenting the appeal in time. In that view of the matter we answer the question referred to us by the Tribunal in the affirmative. The respondent will pay the cost of the applicant which we assess at five gold mohurs. CHOWDHURY, C. J.‑I agree. If the irregularities in the transmission of the postal articles by the postal authorities do not constitute a sufficient cause for condonation of delay, we do not conceive what would constitute a sufficient cause for condonation of delay under subsection (2) (a) of section 33 of the Income‑tax Act. It is no doubt true that the power given to the Appellate Tribunal is discretionary but certainly it does not mean arbitrary discretion contemplated by the section. It is a judicial discretion. It will be an arbitrary exercise of discretion not to admit the appeal on that ground. Reference answered in affirmative.